A bipartisan compromise on the future of the embattled Colorado Civil Rights Commission – one of the most politically fraught bills of this legislative session – cleared the Senate with unanimous support on Monday.
But a battle looms ahead in the House. The proposed changes go too far, said House Speaker Crisanta Duran and Rep. Leslie Herod, both Democrats from Denver, in a statement after the Senate last week gave initial approval to the bill.
The House and the Senate now have less than nine days to iron out their differences before the session comes to a close.
The commission that enforces the state’s anti-discrimination laws is currently up for reauthorization, meaning that if lawmakers can’t reach a deal, it will have one year to begin winding down. Lawmakers have already approved $2.1 million in the state budget to keep the commission operating and employ roughly 27 staffers at the commission. Democrats want the commission left untouched, but Republicans want to change who serves on the commission and who gets to appoint its members.
The reauthorization comes as the U.S. Supreme Court considers the most high-profile case the commission has ever considered in its 67-year history – that of the owner of Masterpiece Cakeshop in Lakewood who refused to make a wedding cake for a gay couple because he said it conflicted with his First Amendment right of artistic, religious and free speech expression. The commission ruled in 2013 that Masterpiece’s owner Jack Phillips violated the state’s anti-discrimination law, a decision that was upheld by the Colorado Court of Appeals. Phillips then petitioned the Supreme Court to take up the case, and the court heard oral arguments last December. A decision is expected this summer in the case, which is being closely watched nationally both by Christian-right groups that support Phillips and by LGBTQ and civil rights advocates who fear a legal precedent justifying discrimination based on First Amendment protections.
The question of whether to keep the commission running by reauthorizing it at the Statehouse has become a lightning rod ever since Republicans on the Joint Budget Committee voted not to fund it earlier this year. That vote drew outrage from Democrats and civil rights advocates. Both chambers since have approved $2.1 million for the commission.
One of the changes approved in the Senate would take power away from the governor, who currently makes all appointments to the seven-member panel with consent from the Senate. That proposal is one of several Republican attempts this session to chip away at the governor’s power. It comes after the Senate voted down the reappointment of LGBTQ advocate Heidi Jeanne Hess as head of the commission last May, but whom Gov. John Hickenlooper allowed to stay on the commision until she resigned on Jan. 9. There is still no replacement for her on the panel, which is currently operating with six members — three Democrats, two unaffiliated members and one Republican.
The reauthorization bill seeks to tip power on the commission by giving lawmakers the ability to appoint members themselves, without the governor’s nod. Under the proposed law, the seven-member panel would be expanded to nine members – five of whom would be appointed by the governor and four of whom would be chosen by House and Senate leadership of the opposite party.
Herod, who is sponsoring the bill in the House, told The Colorado Independent that changing the appointment process could radicalize the commission. “My chief focus is to make sure these commissioners are working for the people of Colorado and not the political interests of this building,”
Hickenlooper, who seldom weighs in on proposed legislation, also opposes a change in appointing power.
“We disagree with adding partisan-affiliated appointments made by legislators to the Commission; but there is a long way to go in the legislative process,” he said in a statement.
Daniel Ramos, the executive director for One Colorado, an advocacy organization representing the LGBTQ community, said, “(We) remain concerned the bill as it stands will not adequately serve Coloradans who bring claims of discrimination and wish to seek justice.”
But Republicans say they want to bring balance to the commission.
Under the bill, a majority of the members would still represent people who have faced discrimination based on characteristics like skin color or sexual orientation. And the bill would also keep an even balance of Republican, Democratic and unaffiliated voters.
“I have always maintained that our desire was balance, not control,” said Sen. Bob Gardner, a Republican from Colorado Springs who helped draft the changes in the Senate.
At the start of the review process, Republicans said they wanted to give businesses a more fair go in the adjudication process. To do so, they want two members on the commission from the business community. This is currently the case, but the bill now specifies that those two members must be the majority owners of small- and medium-sized businesses.
Democrats allowed this change because the compromise removes a controversial amendment to allow either party in a discrimination dispute to opt to have their case heard in state District Court, which they said would have created an uneven playing field favoring businesses who could hire lawyers to defend them.
Rep. Stephen Humphrey, a Republican from Eaton, tried to amend the reauthorization bill in the House so that it would allow businesses and employers to discriminate based on “sincerely held” religious beliefs. This is not in the bill. And so far, no proposed changes affect the Colorado Anti-Discrimination Act.
The measure is likely to go to a conference committee where Democrats are expected to try undoing the changes made in the Senate.
Correction: A previous version of this story said the commission would shut down if lawmakers do not pass a reauthorization bill. The commission would have one year to wind down. Lawmakers would still have a chance to reauthorize the program during the 2019 legislative session before funding runs out.