Colorado LegiSource

An informational and educational resource for the Colorado General Assembly by the Office of Legislative Legal Services.

Author: olls

  • Amendment B – A bit of the backstory

    by Ed DeCecco

    The year was 1982. Michael Jackson released Thriller, ET was phoning home and charming audiences the world over, and the Denver Broncos finished last in the AFC West. More notably for Colorado taxpayers, voters also approved Amendment 1, which was passed by the General Assembly as House Concurrent Resolution No. 1005.

    Amendment 1 was a constitutional amendment and it was first. (Note: My editor has informed me that wasn’t quite enough backstory.) Amendment 1 was a comprehensive restructuring of article X, section 3 of the Colorado Constitution that made a number of changes to the property tax system. Prior to its introduction, a Citizen’s Panel reviewed and made recommendations for changing the property tax system, and then a House Ad Hoc Committee synthesized those recommendations into a concurrent resolution. Amendment 1 exempted some properties; established penalties for counties that failed to value property correctly; made a number of changes to the State Board of Equalization; and last but not least, amended how actual property value is determined and how property is valued for assessment.

    Now, if you are a county assessor, you would read this last item and think to yourself “Everyone knows how to value and assess property. On with it, you buffoon!” But for everyone else, a brief explanation of the property tax system is probably helpful. First, the actual value of property is determined for each assessment cycle, which for most property begins every odd-numbered year. The assessed valuation of the property is then determined by multiplying the actual value by the applicable assessment rate. Finally, the assessed valuation is multiplied by a local government’s mill levy, which is the property tax rate expressed in one one-thousandths, to determine the amount of tax owed.

    Prior to Amendment 1, the assessment rates were fixed in statute at 30% for residential and nonresidential property, although there were also a number of subclasses of property that had lower assessment rates established in law. With the exception of producing mines and lands or leaseholds producing oil or gas, Amendment 1 required nonresidential property to be assessed at 29% of its actual value, and residential property to be initially assessed at 21% of its actual value.

    But as a result of the conference committee report for House Concurrent Resolution No. 1005 that both chambers adopted, article X, section 3 (1)(b) of the Colorado Constitution requires the General Assembly to determine the percentage of aggregate statewide assessed property that is attributable to residential real property for the 1985 property tax year and to recalculate that percentage each year thereafter based on certain adjustments (called the “target percentage” in statute).[1] Each property tax year when there is a change in the level of value, which is the biennial reassessment cycle, the General Assembly must adjust the residential assessment rate with the goal of keeping the target percentage the same as it was in the year immediately preceding the new assessment cycle. You probably know this provision by its common moniker—the Gallagher Amendment.[2]

    As a result of the Gallagher Amendment, the residential assessment rate has over time declined to 18%, 16%, 15%, 14.34%, 12.86%, 10.36%, 9.74%, 7.96%, 7.2%,[3] and finally to its current level of 7.15%. Those percentages remind me of the scores on my last 10 German tests in high school. And just as my scores alarmed my high school German teacher and parents, this trend of lowering residential assessment rates caught the attention of the General Assembly. Thus, it convened the Alternatives to the Gallagher Amendment Interim Study Committee during the interim after the 2018 legislative session. As part of this committee, the legislators heard testimony about the declining residential assessment rate and the effect on local governments and, as its name suggested, considered alternatives to the Gallagher Amendment.

    While no proposals passed in 2018 as a result of the interim committee, perhaps a seed was planted, as two committee members—Senator Jack Tate, Arapahoe County, and Representative Daneya Esgar, Pueblo County—were prime sponsors of Senate Concurrent Resolution 20-001. Senate Concurrent Resolution 20-001. And if that happens, the assessment rates will remain constant—7.15% for residential property and 29% for nonresidential property—by operation of the existing statutory provisions. So if Amendment B passes, the state will be back where it started prior to the election in 1982. The assessment rates will be set in statute, and the Broncos will likely finish in last place again.[4]

     

    [1] This is often described as a 45%/55% split, which describes the first ratio of aggregate statewide valuation of assessment attributable to residential property to the aggregate statewide valuation of assessment attributable to nonresidential property, but the actual target percentage often varies a percentage point or two from 45%.

    [2] No, it is not named after the 70s prop comedian known for smashing watermelons with oversized hammers, but rather for Dennis Gallagher, the legislator and later City and County of Denver Councilperson and Auditor, who championed the provision as a state Senator.

    [3] These decreases were not in successive years. Sometimes the residential assessment rate stayed constant.

    [4] For more information about Amendment B, see the Blue Book at http://leg.colorado.gov/sites/default/files/blue_book_english_for_web_2020_1.pdf

  • National Popular Vote Compact: Every Colorado citizen’s chance to change how we elect the President

    by Bob Lackner

    During every presidential election, millions of Americans cast a ballot for a presidential candidate. Those votes, however, are actually cast not for the presidential candidates themselves, but for a slate of presidential electors: Members of the Electoral College, who actually select the President of the United States. From the first days of the Republic, the Electoral College has been a controversial mechanism for electing the president. The fact that in the past 20 years, there have been two elections (in 2000 and 2016) in which the winner of the national popular vote did not obtain a majority of votes in the Electoral College has helped fuel the controversy. This continuing debate over the continued utility of the Electoral College has led people to consider alternatives. One alternative that is before the voters of Colorado this year is the National Popular Vote Compact (Compact). Voters have the opportunity to support or oppose the Compact by voting on Proposition 113.

    The issue of determining how to select the nation’s chief executive was described as the most difficult of all the issues the Constitutional Convention had to decide.[1] The Electoral College emerged as an 11th hour compromise.[2] The United States Constitution specifies that each state has a number of presidential electors (or members of the Electoral College) equal to the whole number of its senators and representatives in Congress.[3] Colorado has two senators and currently seven representatives, which means our state has a total of nine electoral votes. The full membership of the Electoral College is 538 electors, representing 100 senators, 435 members of the House, and three electors from the District of Columbia.

    Currently, individual voters in all the states and the District of Columbia vote for a ticket consisting of a presidential and vice presidential candidate. The tally of individual votes is known as the popular vote. With the exception of Maine and Nebraska, every state appoints a slate of presidential electors selected by the political party whose candidate wins the state’s popular vote in the general election.[4] In this manner, for all but those two states, the Electoral College operates as a winner-take-all system in which the winner of the statewide popular vote receives all of that state’s Electoral College votes.

    Each December, after a presidential election, the presidential electors meet (typically in their state capitols) to cast their votes to elect the president and vice president. A candidate must receive at least 270 Electoral College votes to be elected president. If no candidate receives enough votes, the House of Representatives chooses the president and the Senate selects the vice president, although this scenario has not occurred since 1824. There have been five elections in the United States in which the winner of the national popular vote was not the winner of the Electoral College vote.[5]

    The idea of the Compact came from those supporting direct election of the president or who otherwise object to the Electoral College. Essentially, the Compact is an agreement among participating states to ensure that the presidential candidate who receives the most votes nationwide is elected president. Under the Compact, each member state designates the presidential slate with the largest national popular vote total as the “national popular vote winner” for that state. Once the Compact goes into effect, a participating state commits to awarding all of its electoral votes to the national popular vote winner.[6] This would mean, for example, that if the voters of Colorado give a majority of their votes to Candidate A but Candidate B is the winner of the national popular vote, all of Colorado’s electoral votes would be awarded to Candidate B, the national popular vote winner, notwithstanding the fact that Candidate B did not win the statewide popular vote in Colorado. Under the current system, by comparison, the candidate who wins a majority of Colorado’s votes gets all of Colorado’s votes in the Electoral College – regardless of how well that candidate performs nationally.

    The Compact ensures that the candidate who wins the most nationwide votes also wins a majority of the votes in the Electoral College, since a majority of electoral votes will be automatically awarded to the winner of the national popular vote. In this way, the Compact will preclude future controversies in which the winner of the national popular vote is not the candidate who wins a majority of the votes in the Electoral College.

    By its terms, the Compact takes effect on July 20 of any presidential election year in which states representing 270 or more electoral votes have enacted the Compact. If Proposition 113 passes, the Compact will include 15 states and the District of Columbia, representing 196 electoral votes. This is 74 votes short of the 270 electoral votes necessary for the agreement to take effect. Because the Compact was not in effect as of July 20, 2020, it will not apply to the 2020 presidential election, which means that it can take effect no earlier than the 2024 presidential election. Until the Compact becomes law, Colorado will continue to award its Electoral College votes to the winner of the state’s popular vote.

    The Compact is designed to implement what amounts to direct election of the president without having to formally amend the U.S. Constitution to eliminate the Electoral College. Getting states representing 270 electoral votes to enact the Compact is arguably much easier than undertaking the arduous and time-consuming process of amending the Constitution.

    In 2019, during the regular legislative session of the General Assembly, the General Assembly passed, and the Governor signed into law, Senate Bill 19-042. The bill makes Colorado a party to the Compact. After the bill was passed, opponents initiated a referendum petition as allowed in article V, section 3 of the Colorado Constitution. The text of Proposition 113 consists of the full text of Senate Bill 19-042.

    A “yes” vote on Proposition 113 is a vote to approve Senate Bill 19-042 and award all of Colorado’s electoral votes in presidential elections to the winner of the national popular vote once the Compact takes effect. A “no” vote on Proposition 113 is a vote to reject Senate Bill 19-042 and retain the current system of awarding the state’s Electoral College votes to the candidate who wins the Colorado popular vote.[7]

     

    [1] Chiafalo v. Washington, No. 19-465, slip. op. at 2 (U.S. July 6, 2020)

    [2] Id.

    [3] Article II, §1, Cl. 1. The number of members of the U.S. House of Representatives that is allocated to a state is based on the total population of the state as adjusted after the last census.

    [4] In Maine and Nebraska, the candidate who wins the popular vote in each congressional district get the electoral vote for that district and the remaining two electoral votes go to the candidate who wins the statewide popular vote.

    [5] As noted above, this has happened twice in the past 20 years (2000 and 2016) while the other three instances occurred in the 1800s. Such an event did not happen between the 1888 and 2000 presidential elections.

    [6] Most of the substantive provisions of the Compact are contained in Article III. That article specifies in relevant part that “[t]he presidential elector certifying official of each member state shall certify the appointment in that official’s own state of the elector slate nominated in that state in association with the national popular vote winner.” Most of the other provisions contained in the Compact address requirements that are more of a procedural and administrative nature.

    [7] The author wishes to acknowledge reliance on the 2020 State Ballot Information Book, Legislative Council of the Colorado General Assembly, Research Publication No. 748-1A (“Blue Book”) for general background relating to the Electoral College and the Compact as part of the Blue Book’s discussion of Proposition 113 on the 2020 general election ballot.

  • Why the National Popular Vote Compact Resembles Oleomargarine

    by Julie Pelegrin

    This year’s statewide ballot promises to be action-packed with initiatives and referred measures—11 in all. But only one of the ballot measures is actually historic: Proposition 113 (aka Senate Bill 19-042), an act concerning adoption of an agreement among the states to elect the President of the United States by national popular vote. It’s not historic because of its content (although changing how we elect presidents and vice presidents would arguably be significant), it’s historic because of the path it took to get on the ballot.

    Long-time LegiSource readers will remember that in 1911, the people of Colorado amended article V, section 1 of the state constitution to reserve to themselves the power of referendum. This means that, if a bill passes without a safety clause, an individual may collect signatures[1] on a petition to place all or a portion of the bill on the ballot for voter approval. Senate Bill 19-042 passed February 21, 2019, without a safety clause. The governor signed the bill, and by August 1, 2019, two citizens submitted a petition to the Secretary of State’s office with enough signatures to put the entire act on the ballot. The last time the people referred an act to the ballot was 1931—and therein lies a tale.

    The Twenty-eighth Colorado General Assembly convened its regular legislative session Wednesday, January 7, 1931. The state and the nation were still in the early years of what’s now known as the Great Depression. About a week into the session, Representative Joe Plummer, a farmer representing Morgan and Washington counties, introduced House Bill 10 (HB10), “A Bill for an Act Regulating the Manufacturing, Selling, Handling or Dealing in Oleomargarine, Imitation or Filled Cheese, or Any Substitute for Any Dairy Products, Requiring Licenses Therefor, ….”

    These days the concept of “oleomargarine” requires some explanation. Margarine was created in France in 1869. Emperor Louis Napoleon III offered a prize to whomever could invent a “cheap edible fat” to feed the military and the lower classes. Although it started as a mix of animal fats, by the early 20th century, oleomargarine was mainly made from vegetable oils (oleo comes from the Latin oleum, “oil”) and soon it was widely available as a low-cost alternative to butter. And that caught the attention of the dairy industry.

    The industry supported several state and federal laws against oleomargarine, mainly to tax it and prohibit the addition of coloring. (Oleomargarine is naturally colored an unappetizing white; margarine comes from the Greek word for “pearl.”) HB10 as introduced would have made selling oleomargarine without a license unlawful, and the licensing fees weren’t cheap. The bill also prohibited making or selling oleomargarine that was colored and flavored in imitation of real butter. According to Western Farm Life magazine, the “obvious” object of the bill was to “benefit and protect the dairy farmer,” and the magazine urged the agricultural interests of the state to support the bill by writing to their legislators.[2]

    But not everyone was so pleased. According to the Steamboat Pilot, the bill ignited a “vigorous fight” between the range cattlemen and dairy cattlemen. The oleomargarine made in Colorado included beef tallow. The range cattlemen claimed the licensing requirements would reduce the market for oleomargarine, and thus tallow, thereby reducing the price of cattle by about six dollars per head.[3]

    Despite the vigorous fight, the bill enjoyed a pretty smooth ride in the House. HB10 passed on third reading February 24 with 52 aye votes. Fifty members of the House then voted to add a safety clause.[4]

    The ride was much bumpier in the Senate. First, the bill stalled in committee for over a month. When a motion to move the bill out of committee was tabled, one newspaper columnist reported, “That just about kills it.”[5] Eventually a deal was cut, and on April 2, the committee recommended the bill to the Committee of the Whole with significant amendments, including adding an excise tax on oleomargarine of 15 cents per pound. The Committee of the Whole rejected the committee report and instead adopted an amendment replacing the text of the entire bill, retaining the 15 cent tax, but exempting oleomargarine that contained more than 30% of animal fats. The bill weathered several additional attempts to amend and kill the bill, finally passing third reading in the Senate with 28 ayes. But the safety clause was removed.

    The House promptly rejected the Senate amendments. The conference committee again rewrote the entire bill, and both houses finally passed the bill on the last day of session. In its final form, the bill, included a 15 cent per pound tax on oleomargarine containing less than 45% animal fat, required manufacturers and wholesalers to pay an annual $25 license fee, required restaurants that served oleomargarine to post a sign to that effect, and did not have a safety clause.

    But all was not well. According to some news reports, the “nut oil interests” (the other oil used in oleomargarine) were not happy about the tax.[6] But one columnist continued to claim that it was the dairy farmers and cattlemen who were still at odds.[7] By July 22, the citizens had referred HB10 to the ballot. And, despite endorsements by several agricultural interests and recommendations for passage in several rural newspapers, HB10 failed with 217,671 no votes to 134,313 yes votes.

    And one would think that was the end of it. But it wasn’t.

    About two weeks after the Twenty-ninth General Assembly convened in January 1933, Representative Joe Jankovsky[8] introduced House Bill 337 (HB337), “A Bill for an Act Defining Oleomargarine and Relating to the Sale and Distribution Thereof and Providing for an Excise Tax Thereon.”[9] Before it passed the Senate, at least one newspaper editorial referred to the General Assembly’s action on the bill as “discouraging and disgusting.” The editorial went on to ask, “How in the world can we have decent, efficient government when legislators, elected to represent the people turn right around and deliberately do the thing the people have said shall not be done.”[10]

    HB337 as introduced looked a lot like HB10, but by the time it passed there were three important differences: 1) The excise tax was reduced to ten cents per pound; 2) the tax exemption applied to oleomargarine made from any of a variety of listed fats (all of which appear to be domestic in origin); and 3) the bill had a safety clause. And the final interesting twist to this story: The only reference in the journals to a vote on the safety clause is in the House, where it failed. There is no other indication in the House or Senate Journals that the safety clause was approved by a two-thirds vote, which appears to have been the practice at the time.

    So, November 3, 2020, Colorado voters will decide the fate of Senate Bill 19-042. If the measure fails at the ballot, history demonstrates that the question of Colorado’s participation in the national popular vote compact could be revived for consideration by a later General Assembly.

     

    [1] This year the minimum required number of signatures is 124,632.

    [2] “Legislation in Interest of Farmers,” The Western Farm Life (for Irrigation, High Altitude, Plains Farmers), as reproduced in the Record Journal of Douglas County, February 20, 1931.

    [3] Alva A. Swain, Under the Capitol Dome, the Steamboat Pilot, February 6, 1931.

    [4] Based on a review of the House and Senate journals from that time, it appears that once a bill passed third reading, the body – House or Senate – would consider a motion to add a safety clause to a bill. The motion required at least a two-thirds majority to pass.

    [5] Alva A. Swain, Under the Capitol Dome, the Steamboat Pilot, March 27, 1931.

    [6] “Dairy Interests Contend Margarine Bill Should Pass,” the Independent, Vol. XLV, No. 48, Oct. 28, 1932.

    [7] Alva A. Swain, Under the Capitol Dome, the Wray Gazette, Vol. 30, No. 42, Oct. 13, 1932.

    [8] Rep. Plummer was not reelected in 1932.

    [9] The final title of HB10 was “An Act Defining Oleomargarine and Relating to the Sale thereof and Providing for an Excise Tax Thereon.”

    [10] Oak Creek Times, reprinting from the Lamar Register, page 4, March 30, 1933.

  • Third Reading – Overview of Rules

    by Julie Pelegrin

    Editor’s note: This is the fourth in a series of articles on the legislative rules that LegiSource is reposting during the 2020 legislative interim. This article was originally posted March 6, 2014, and has been edited as appropriate.

    The legislator’s bill has passed the committee of reference, passed the Committee of the Whole on second reading, and is finally calendared for third reading and final passage. There are fewer third-reading rules to learn, but knowing these rules is crucial if the bill sponsor wants to ensure that the bill safely finishes its journey through the House or the Senate.

    Voting on Third Reading

    Art. V, section 22, Colorado Constitution
    House Rules 20(a)(1) and 33(c) and (d)
    Senate Rules 17(f)(1) and 25(b)

    The state constitution and the legislative rules impose several requirements on the third reading process. Article V, section 22 of the Colorado Constitution requires that second and third reading take place on different days. For example, if a bill passes second reading on Monday, it cannot be considered on third reading until Tuesday at the earliest. Because of this requirement, it takes at least three days – from introduction in the first house through final passage in the second house – for the Colorado General Assembly to pass a bill. In the final three days of the regular legislative session, if a bill has not passed on second reading in the first house by the end of the 118th day, the bill is considered dead because it cannot constitutionally pass by the end of the legislative session.

    To pass on third reading, a majority of the elected members of the House and the Senate must approve the bill, and the third reading vote must be recorded in the House and Senate journals. This requirement leads to the Rule of 33, 18, and One: To pass, a bill must receive at least 33 aye votes in the House, 18 aye votes in the Senate, and the Governor’s approval, either explicit or implied.

    The constitution and the rules of the House and the Senate also require that all substantial amendments to a bill must be printed and distributed to the legislators before the third reading vote. Both houses implement this requirement by creating the engrossed version of the bill that includes all of the amendments adopted on second reading in the first house and the revised version of the bill that includes all of the amendments adopted on second reading in the second house. When a chamber votes on a bill on third reading, it is voting to adopt the engrossed version or the revised version of the bill, depending on whether the third reading vote occurs in the first or second house.

    Third reading consent calendar – Senate only

    Senate Rule 25A(c) and (d)

    In the Senate, if a bill passes on the second reading consent calendar, it is placed on the third reading consent calendar for consideration on the next day of actual session. A senator may object to having the bill on the consent calendar at any time before the bill passes on third reading, in which case the bill is removed from the consent calendar and placed on the third reading calendar for the next day of actual session.

    Senators cannot substantially debate bills that are on the third reading consent calendar, and they will not consider substantive third reading amendments to any of these bills. The Senate takes a single vote on all of the bills on the third reading consent calendar, but each senator has the opportunity to vote no on each bill. The yes and no votes are recorded in the Senate journal separately for each bill.

    The House does not use a consent calendar.

    Third reading procedures

    House Rules 13(d); 23(h)(3); 27(b); 27A(a) and (c); 29(k); and 33
    Senate Rules 9(d); 11; 17(f)(15); 22A(b); 24A(a) and (c); 25(b), (k), and (m); and 31(f)

    Decorum. When the House or the Senate is considering bills on third reading, a legislator may not introduce any visitors in the gallery or chambers. During third reading in the House, representatives cannot use electronic devices to send or receive voice or data communications, including emails, texts, and tweets. And it’s worth noting that senators and representatives cannot use cell phones for voice communications at any time in the Senate chambers or House chambers.

    Motions. All of the bills on third reading are read by title only unless a legislator requests that the bill be read at length. On third reading, a legislator may move to:

    • Strike the enacting clause of the bill, which kills the bill;
    • Amend the bill, which requires the permission of a majority of the representatives or senators;
    • Adopt the bill;
    • Refer the bill back to a committee of reference;
    • Lay the bill over for consideration on a later date; and
    • In the House, refer the bill back to second reading for consideration of a substantial amendment to the bill.

    Third reading amendments. To offer an amendment on third reading, a legislator must first move for permission to offer the amendment. If a majority of the representatives or senators grants permission by voting yes on the motion, then the legislator can move for the adoption of the third reading amendment. The votes on each third reading amendment are recorded in the House and Senate journals whether the amendment passes or fails.

    On third reading, the House and the Senate typically consider only technical amendments to correct a drafting oversight or error. Sometimes, however, a legislator finds that he or she needs to substantially amend a bill on third reading. In the House, if a representative wants to offer a substantial amendment on third reading, he or she must move to refer the bill back to second reading to consider the amendment. Except during the last three days of the session, a substantive amendment is not in order on third reading in the House. In the Senate, a senator must have the amendment printed and placed on the desk of each senator, and the bill and amendment are laid over for consideration until the next day of actual session.

    Limits on speaking. On third reading, the House and Senate rules limit the number of times and the length of time that legislators may speak on a question – in most cases an amendment or a bill. These rules are somewhat different for the House and the Senate.

    In the House, most representatives may speak only twice on each bill or amendment. But the chairman of the committee of reference to which a bill was assigned and the representative who moves the bill or amendment may speak more than twice. Regardless of how many times a representative speaks, however, the representative cannot speak longer than a total of 10 minutes on each bill and each amendment.

    In the Senate, most senators are also limited to speaking only twice on each bill, but the bill sponsor may speak more than twice. And each senator is limited to ten minutes each time he or she speaks on the bill.

    Second house sponsors. Before a bill can be heard on third reading in the first house, the bill sponsor must designate a prime sponsor for the bill in the second house. The Chief Clerk of the House and the Secretary of the Senate have forms that the legislators must complete and turn in to the House or Senate front desk before the bill can be heard on third reading.

    Cosponsors. Immediately after a bill passes on third reading, legislators may add their names as cosponsors of the bill or request that their names be removed as cosponsors.

    Once a bill passes on third reading in the first house, the bill, including any amendments adopted on third reading, becomes the reengrossed bill and it is sent to the second house for consideration. When the bill passes on third reading in the second house, the bill, including any amendments adopted on third reading, becomes the rerevised bill. If the second house amends the bill, the rerevised bill is returned to the first house for consideration of the second house amendments. If the second house does not amend the bill, the bill is engrossed, signed by the Speaker of the House of Representatives, the Chief Clerk of the House, the President of the Senate, and the Secretary of the Senate, and sent to the Governor, who decides whether to sign the bill, veto the bill, or allow the bill to become law without a signature.

  • Throwback Thursday 1920 – A Year of Unexpected Firsts

    by Patti Dahlberg

    The 1920 Summer Olympics, the first held after the end of the World War I, was awarded to Antwerp, Belgium in the hopes of bringing a spirit of renewal to a country left devastated by World War I (WWI). The games lasted from April 20 to September 12 (almost five months) and the themes centered on reconciliation between nations and remembering the victims. Although the countries defeated in WWI were not forbidden to attend the games, they were also not invited. Awarded the games in 1919, Belgium had only a short time to clear war rubble and construct new facilities and did an amazing job amidst the physical and economic chaos of post-war Europe. Granted, when the games started the athletic stadium was not yet completed and athletes were housed in crowded rooms furnished with folding cots, but that did not deter the more than 2,600 athletes representing 29 countries from participating. Unfortunately, spectator attendance was low as money was still scarce for most people, and in the final days of the games, organizers filled the stands with schoolchildren.

    The 1920 Olympics were the first games in which the now well-known Olympic flag with the symbol of five interlocking rings representing world unity and universality appeared. It was also the first time that one athlete took the Olympic oath on behalf of all the athletes and that doves, symbolizing world peace, were released during the opening ceremony. For those medal counters out there – the United States, Sweden, and Great Britain walked away from the games with the highest total medal counts overall, with 95, 64, and 43 respectively. (The 1916 Olympics, originally scheduled to be held in Berlin, Germany were canceled due to WWI [July 28, 1914 – Nov. 11, 1918]).

    Women achieved the right to vote. The United States women’s suffrage movement could be traced back to 1638, when Margaret Brent, a successful business woman in Virginia demanded the right to vote in the state’s House of Burgesses. By 1920, a mere 282 years later, nearly every state west of the Mississippi River allowed women to vote. Colorado gave women the right to vote in 1893. Finally, on August 18, 1920, the Tennessee House of Representatives voted 50-49 in favor of the 19th Amendment, which prohibited the denial of the right to vote based on sex. It was the last “yes” vote needed for ratification.

    By the way, the first woman to hold federal office was Jeannette Pickering Rankin, elected to the U.S. House Of Representatives from Montana in 1916. While in Congress, she introduced the legislation that eventually became the 19th Amendment to the Constitution.

    Ratification of the 19th Amendment made the 1920 election the first in which women had the right to vote in all 48 states, and women showed up at the polls to let their voices finally be heard. The total popular vote increased dramatically from 18.5 million in 1916 to 26.8 million in 1920. It was also the first election in which both the Republican and Democratic parties, anxious to attract women’s votes, sought prominent women to speak in support of their candidates. Among them was Corinne Roosevelt Robinson, sister of Theodore Roosevelt.

    The League of Women Voters (LWV), founded in 1920, about six months before the 19th Amendment was ratified, was created to educate women on election processes and help them exercise their new responsibilities as voters. The LWV, officially a nonpartisan entity, was also formed to lobby for favorable legislation on women’s issues. Originally, only women could join the league, but in 1973, the charter was modified to include men.

    A guy named Ponzi came up with a sales idea. In the early 1900s, countries around the world created an “international reply coupon” to simplify mailing items across national borders. These coupons could be bought in one country and then traded for postage stamps in another. Charles Ponzi, an Italian immigrant to the U.S. found a loophole in the system. Due to economic ruin in much of Europe after WWI, Ponzi realized that he could buy coupons in various countries at a reduced cost and redeem them in the U.S. for a return on investment. Because he wanted large returns, he needed large investments. He set up a business, hired agents to bring in new investors, promising large commissions for the money brought in. Word spread and investors brought in new investors who brought in new investors. Ponzi soon realized that profit was no longer a necessary ingredient for the company to operate as investors were essentially funding each other’s commissions. The system, of course, eventually collapsed, and Charles Ponzi was arrested on August 12, 1920, and charged with 86 counts of mail fraud.

    The birth of mass media? On election night, November 2, 1920, the first commercially licensed radio station to produce a news program, KDKA in Pittsburgh, PA, began broadcasting live results of the presidential election.  The radio station, broadcasting from the rooftop of a Westinghouse Electric building, timed the news launch to allow listeners to learn the results of the election closer to “real time” instead of waiting to read about it in newspapers the next day. The election-night coverage began at 6 p.m. and was broadcasted to an estimated 1,000 people. The four men on staff at the radio station that night read telegraph ticker election results over the air as the results came in. The newscast was a hit, changing the way people received information. News began to have a greater sense of immediacy; radio could share stories with the public as the stories unfolded.

    As word spread of this transmission of “breaking news” the “talking box” exploded in popularity. Within two years, Americans had bought 100,000 radios. By 1923, they bought 500,000, and by 1926, there were more than 700 commercial radio stations. According to Eric Burns, in his book “1920: The Year That Made the Decade Roar”, no other event of 1920 would have a greater effect on the future than the birth of radio and mass media.

    More Urban than Rural. The United States Census reported for the first time that more Americans lived in urban areas than in rural areas. At that time, “urban” was defined as any town with more than 2,500 people. The 1920 census also reported that the U.S. population was more than 100 million people for the first time – 106,021,537 people to be more exact. It was also the first census in which a state, New York, recorded a population of more than 10 million people. Overall, the U.S. population increased by 15%. Colorado’s population rose from 799,024 in the 1910 census to 939,629 in 1920, up almost 18%.

    The U.S. Constitution requires that seats in the House of Representatives be reapportioned according to state populations every ten years, based on the results of the decennial census. The census of 1920 was the first-ever exception to this redistribution of representation when members of Congress failed to agree on a reapportionment plan. The distribution of seats from the 1910 census remained in effect until 1933. In 1929, Congress passed the Permanent Apportionment Act of 1929  to provide a permanent method of reapportionment and fixed the total number of representatives at 435.

    Resources:

  • Second Reading and the Committee of the Whole – Overview of Rules

    by Julie Pelegrin

    Editor’s note: This is the third in a series of articles on the legislative rules that LegiSource is reposting during the 2020 legislative interim. This article was originally posted February 20, 2014, and has been edited as appropriate. We will post the fourth article in two weeks.

    The Merriam-Webster online dictionary defines “committee of the whole” as “the whole membership of a legislative house sitting as a committee and operating under informal rules.” But just what are those rules and how informal are they?

    Committee of the Whole

    House Rule 32
    Senate Rule 28

    Second reading begins with a motion that the body resolve itself into the Committee of the Whole for consideration of either general orders or special orders. In the Senate, the motion may also be for consideration of general orders – consent calendar (see explanation below). When the motion passes, the Speaker of the House or the President steps down and selects a legislator to preside over the Committee of the Whole. The chair of the Committee of the Whole has all of the powers of the Speaker or the President that are necessary to conduct the business of the Committee. By rule in the House and by custom and practice in the Senate, the chair of the Committee of the Whole does not vote except to break a tie.

    The procedural rules of the House and the Senate apply to the proceedings of the Committee of the Whole, except:

    • A legislator may speak more than twice on the same subject;
    • A legislator may not call for the ayes and noes, (i.e., a recorded vote), but a legislator may request a standing vote, known as a division, before the chair announces the outcome of the vote;
    • There’s no appeal from a decision of the chair; and
    • In the House, by rule, a motion for the previous question, which would cut off debate, and a motion for reconsideration are not in order. This also is true in the Senate, but by custom and practice, not by rule.

    The Committee of the Whole may amend a bill, pass a bill, reject a bill, refer a bill to a committee of reference, or lay a bill over for consideration on another day. All votes taken by the Committee of the Whole are voice votes, unless a Representative or Senator calls for a division before the chair of the Committee of the Whole announces the vote. In that situation, the chair takes a standing vote, first of all those in favor of the amendment or bill, and second of all those opposed to the amendment or bill. The greater number standing carries the vote. Voice votes and votes taken on division are recorded only as pass or fail; the actual names or numbers of Representatives or Senators voting on each side are not recorded.

    Consent Calendar – Senate only

    Senate Rule 25A

    The Senate can deal with several bills on second reading with a single vote by using the consent calendar. The consent calendar is used only for noncontroversial bills that do not require substantial debate or substantive floor amendments. The Majority Leader, after consulting with the Minority Leader, decides which bills are placed on the consent calendar, usually based on recommendations by committees of reference. Once a bill is placed on the consent calendar, if a Senator objects at the microphone to including the bill on the consent calendar, the bill is removed from the consent calendar and placed at the end of the general orders calendar for that day.

    The Committee of the Whole considers the bills on the consent calendar just like the other bills, except there is no substantial debate or substantive floor amendments allowed on consent calendar bills, and the Committee of the Whole takes a single vote on the consent calendar, which adopts or rejects all of the consent calendar bills on second reading.

    The House does not use a consent calendar.

    Amendments in the House – Settled Questions

    House Rules 28, 32(c), and 34

    In the House, if the Committee of the Whole takes final action on a bill, an amendment, or a committee of reference report, either by adopting or rejecting it, the same Committee of the Whole cannot take a later action that would defeat or resurrect the same bill, amendment, or committee of reference report. This is known as the “settled question” rule, and it prevents the Committee of the Whole from amending the same language twice or from amending language that the Committee has already approved.

    Because of the settled question rule, when a bill sponsor moves a bill in the House, he or she must first move the bill, then the first committee report, and then the second committee report, if there is one. The House will then consider any amendments to the second committee report before adopting or rejecting the report, then any amendments to the first committee report before adopting or rejecting the report, and finally any amendments to the bill before adopting or rejecting the bill. If a Representative has an amendment to the first committee report, and that report has already been adopted, the amendment is a settled question and the chair will likely rule that the amendment is out of order.

    Each amendment must relate to the same subject as the original bill. If a Representative offers an amendment to a pending amendment or offers a substitute amendment to a pending amendment, the offered amendment must be germane to the subject of the pending amendment. For example, if a Representative offers an amendment to change the amount of a fee in the bill, another Representative cannot offer an amendment as a substitute to the pending amendment that would change the date on which the bill takes effect. But another Representative may offer a substitute amendment to the pending amendment to strike the fee requirement from the bill.

    Each substantial amendment must be printed and distributed to the House members. In practice, this means that, if a Representative wants to offer an amendment that is longer than a page, the Representative must turn the amendment in to the Chief Clerk of the House no later than 4:30 p.m. the day before the bill is heard on second reading. During the Committee of the Whole, a Representative may move to lay a bill over so that the amendments that have been offered on the bill can be printed and distributed to the members.

    An amendment to strike out the enacting clause of a bill takes precedence over any other motion relating to a bill. The amendment opens the question of passage of the bill to general debate and, if the amendment passes, the bill is dead.

    Amendments in the Senate

    Senate Rules 5 and 25(h)

    In the Senate, to offer an amendment to a bill in the Committee of the Whole, a Senator must have the amendment typed and must turn it in to the Secretary of the Senate, who numbers each amendment in the order in which it is received.

    The settled question rule does not exist in the Senate. The Committee of the Whole in the Senate can amend the same language in a bill multiple times, and the last amendment that the Committee adopts is the one that is enrolled into the bill for consideration on third reading.

    When a Senator presents a bill to the Committee of the Whole, he or she moves the bill and then moves the first committee report and the committee either adopts or rejects the first committee report. If there are other committee reports, the bill sponsor moves each of those reports, and the Committee either adopts or rejects each report when it is moved. Then the Senators individually move their amendments, whether to one of the committee reports or to the bill, in the order that each amendment was turned in to the Secretary. The Committee must consider every amendment that is turned in to the Secretary unless the sponsoring Senator withdraws the amendment.

    As in the House, an amendment to strike the enacting clause takes precedence over other amendments to a bill. Passage of an amendment to strike the enacting clause kills the bill.

    Updated Fiscal Notes

    House Rule 32A(c)
    Senate Rule 25(e)

    In the Senate, upon the request of five or more members, the legislative council staff will update the fiscal note for a bill that may have a significant effect on the revenues, expenditures, or fiscal liability of the state. If requested, the bill cannot pass on second reading until the fiscal note is updated.

    In the House, a request for a revised fiscal note requires at least 10 Representatives. As in the Senate, once the updated fiscal note is requested, the bill cannot be considered on second reading until the updated fiscal note is prepared.

    Committee of the Whole Report

    House Rule 32
    Senate Rules 17(e), 17(f)(1), 25(f), 28(e), and 28 (g)

    Once the Committee of the Whole completes its work, a person – usually the majority leader – moves that the Committee rise and report. If the Committee isn’t actually done, but is taking a break and coming back on the same day or on the following day, the majority leader will move to rise and report progress and beg leave to sit again. Both motions are decided without debate. If the motion is to report progress and sit again, when the Committee returns, it resumes its work where it left off.

    When the Committee of the Whole finishes and rises and reports, the actions the Committee took on every bill that it considered, including the amendments adopted on each bill, are summarized in the report of the Committee of the Whole. The person who chaired the Committee moves that the House or the Senate, as the case may be, adopt the report of the Committee of the Whole.

    The report of the Committee of the Whole is similar to a report from any other committee – the body that adopts the report can amend it. In the case of the Committee of the Whole report, an amendment to the report reverses the action that the Committee took with regard to a bill or amendment. For example, a legislator may move to amend the Committee of the Whole report to show that a bill or amendment that the Committee passed did not pass. Or a legislator may move to amend the report to show that a bill or amendment that the Committee rejected did pass. In the Senate, a Senator may move an amendment to the Committee of the Whole report to show that an amendment that was not actually offered in the Committee of the Whole passed. The House will only consider amendments to the Committee of the Whole report that affect amendments on which the Committee voted.

    Each amendment to the Committee of the Whole report and the report itself requires the affirmative vote of a majority of the elected members to pass: 33 votes in the House and 18 votes in the Senate. Each legislator’s vote on an amendment to the Committee of the Whole report and on the report itself is recorded. In the Senate, a Senator may request a recorded roll call vote on any individual bill that is included in the Committee of the Whole report.

    Each bill that passes on second reading is then engrossed or revised and calendared for consideration on third reading. Engrossing, which occurs in the first house of introduction, and revising, which occurs in the second house of introduction, means that all of the amendments to the bill that are included in the adopted Committee of the Whole report are typed into the bill to create a new version of the bill: The engrossed version in the first house of introduction and the revised version in the second house of introduction. It is important to note that, after second reading, the operative version of a bill in the first house is the engrossed version, regardless of whether it was amended. Similarly, the operative version in the second house is the revised version, regardless of whether it was amended.

    Reconsideration

    House Rules 32 and 35(d)
    Senate Rule 18

    In the House, a Representative cannot move to reconsider a decision made by the Committee of the Whole. And an amendment to the Committee of the Whole report and adoption or rejection of the Committee of the Whole report and any bill included in the report are not subject to reconsideration.

    In the Senate, a Senator cannot move to reconsider a decision made by the Committee of the Whole. However, a Senator can give notice of the intent to move to reconsider or move for immediate reconsideration of an action taken on an amendment to the Committee of the Whole report, the adoption or rejection of the Committee of the Whole report, or the adoption or rejection of a specific bill included in the Committee of the Whole report. For more information on reconsideration, see the LegiSource article: “The Four W’s and One H of Reconsideration of a Previous Vote.”

  • Federal Free Exercise Clause Defeats State No-aid Provisions

    by Brita Darling

    Loyal readers of LegiSource[1] are already aware of the evolving body of law concerning the Free Exercise Clause of the U.S. Constitution and the religious “no-aid” provisions contained in many states’ constitutions, including Colorado’s.[2] The U.S. Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue,[3] while not declaring these state no-aid provisions unconstitutional, significantly narrowed the instances in which state aid may be restricted from flowing to religious schools.

    The case concerns a tax credit program created by the Montana legislature. Under the program, a person donating to a nonprofit organization that provides scholarships to low-income students to attend secondary schools may receive an income tax credit of $150 for a contribution of $150 or more. Upon award of a scholarship from the nonprofit organization, the parent and student decide which private school to attend. The school must meet the broad statutory definition of a “qualified education provider,” which definition includes religious and nonreligious schools.

    Montana has a constitutional no-aid provision, similar to Article IX, Section 7 of the Colorado Constitution, which prohibits the state from providing aid to a school that is controlled by a “church, sect, or denomination.” While the Montana statute creating the tax credit program did not exclude religious schools from the broad definition of qualified education provider, the statute specifically states that the program must be administered by the state’s Department of Revenue in compliance with the constitutional no-aid provision. To that end, the department adopted a rule that prohibited a parent and student from using the scholarship at a religious school.

    Three parents sued to challenge the rule that excluded religious schools from the program. The Montana Supreme Court held that the department exceeded its authority in promulgating the rule, because the rule conflicted with the statutory definition of qualified education provider. The court also held that the program was unconstitutional because, by including religious schools in the definition of qualified education provider, the statute violated the state’s no-aid provision. Because the court had no mechanism to bring the program into compliance with the no-aid provision, the court invalidated the entire program.

    In a 5-4 decision by Chief Justice Roberts, the Court held that Montana’s application of its no-aid provision violated the Free Exercise Clause because it excluded aid to certain schools based purely on their status as religious schools. Citing the Court’s 2017 holding in Trinity Lutheran Church of Columbia, Inc. v. Comer,[4] “[t]he Free Exercise Clause, which applies to the states through the Fourteenth Amendment, ‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status.”‘ In Trinity Lutheran, the Court’s holding was limited to religious status discrimination in a playground resurfacing program, with the Court specifically declining to decide the issue of religious use of state aid.

    Acknowledging the Court’s distinction between religious status and religious use in Trinity Lutheran, the Court noted that concerns about religious use of the money were not the basis on which the Montana Supreme invalidated the program. Similar to the reasoning in Trinity Lutheran, the Court stated, “[t]his case also turns expressly on religious status and not religious use.” Discrimination based on religious status must satisfy the strict scrutiny standard of legal review. Applying that standard, the Court found that Montana failed to show sufficiently compelling state interests to justify its discrimination against religious schools. Further, the Court reinstated the program, explaining that the Montana Supreme Court should have recognized that applying the no-aid provision violated the federal Free Exercise Clause and should have therefore “rejected the invitation” to do so in favor of deciding the case under federal law as required by the Supremacy Clause of the U.S. Constitution.[5] Had it done so, the Court stated, it would not have invalidated the scholarship program under state law.

    However, similar to Trinity Lutheran, the Court did not declare Montana’s no-aid provision unconstitutional on its face, but only as applied in this case. This leaves Colorado’s constitutional no-aid provision technically intact for now. And the Court seems to leave some room for constitutionally denying aid to a private organization on the basis that the aid will be put to a religious use.[6] However, it is difficult to predict what this type of exclusion would look like or how it could be implemented while still avoiding government’s excessive entanglement with an organization’s religious practices, which has been prohibited in earlier cases.[7]

    What does Espinoza mean for Colorado?

    Does the holding in Espinoza mean that the state is required to fund religious organizations or schools – or any private organizations or schools? The short answer is, “No.”

    Nothing in the Espinoza decision requires the state to fund private education or school choice scholarships, tax credits, or other programs that have the effect, directly or indirectly, of supporting private organizations or schools, whether religious or nonreligious. The Espinoza Court states this clearly:

    The State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.

    The state may continue to use 100% of available public money to support public institutions and public schools and, in fact, the Colorado Constitution requires the state to establish and maintain public schools.[8] Further, the General Assembly remains free to weigh policy decisions regarding the best use of public funds, whether to forego tax revenue, and whether to condition the receipt of public funds on compliance with participant qualifications, program outcomes, and financial reporting.  However, Colorado should be cautious if religious organizations or schools appear to be categorically excluded from sharing in the same opportunities or benefits that flow to nonreligious private organizations or schools, whether due to statute or the application of the no-aid provision.

     

     

    [1] U.S. Supreme Court Resolves a Playground Fight, August 3, 2017; Missouri Tires – Colorado Schools, March 10, 2017.

    [2] Article IX, section 7 of the Colorado Constitution prohibits the state from using public funds in aid of a church, or for a sectarian purpose, or to help support or sustain a church school. Colorado’s provision and other states’ provisions are also referred to as “Blaine amendments” after a failed effort by U.S. Representative James Blaine to include similar language in the U. S. Constitution.

    [3] Espinoza v. Montana Department of Revenue, et al., No 18-1195 (2020).

    [4] Trinity Lutheran Church of Columbia, Inc. v. Comer, 582 U.S. ___, 137 S. Ct. 2012.

    [5] Id. at 22.

    [6] Id. at 11-12. However, the Court recognized that some Court members “have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status.”

    [7] See, e.g., Colorado Christian University v. Weaver, 534 F.3d 1245 (10th Cir. 2008).

    [8] Article IX, section 2 of the Colorado Constitution.

  • Legislative Council Staff Wraps Up the 2020 Blue Book

    by Cathy Eslinger

    The Legislative Council Committee will meet tomorrow, Thursday, September 3, to review analyses of the measures that the secretary of state has certified to the 2020 general election ballot. This year’s ballot will include 11 measures, the majority of which—seven—are on the ballot because each received at least 124,632 signatures on initiative petitions. Of the remaining four, the General Assembly referred three of them to the ballot and the people referred one to the ballot by petition.

    As required by the state constitution and by statute the Legislative Council Staff (LCS) has been working for weeks to prepare the analyses to help the public understand the purpose and effect of each measure. Following the Legislative Council’s review, the LCS will mail the analyses, printed in the familiar “blue book,” to each registered-voter household in the state.

    The LCS prepares a blue book before each general election for which initiated or referred constitutional or statutory amendments or questions are certified to the ballot. The analysis of each measure includes a summary of the measure, the major arguments for and against the measure, and a brief fiscal assessment of the measure. The analysis may also include other information that can help voters understand the measure’s purpose and effect. The goal is to write an analysis that is concise, readable for a layperson, and factually correct. In even‑numbered years, state law also requires that the blue book include information about the judges who are standing for retention in the coming election. The state commission and district commissions on judicial performance prepare this information and provide it to the LCS.

    Each analysis typically goes through three drafts. But, depending on the complexity of the measure and the time available, some may require only two drafts. The LCS interviews proponents, opponents, and other stakeholders, using information provided by them, as well as information obtained through the LCS’s own research, to prepare and amend drafts.

    The LCS maintains a stakeholder mailing list of individuals who express interest in receiving drafts and posts the draft analyses on a page on the General Assembly website along with the text of each measure. Any person may file written comments for staff to consider in preparing the drafts. The staff consider all comments and proposed amendments submitted by the established deadlines, but use discretion in changing the analysis. Some of the criteria for making proposed changes to the analysis include:

    • Avoiding slogan-type language that triggers a response but does not contribute to greater understanding of the measure;
    • Ensuring that statements are verifiable statements of fact rather than mere opinion, directly applicable to the measure, and not misleading;
    • Ensuring that the language specifically strengthens or clarifies the arguments and is not repetitive;
    • Maintaining the balance of the analysis between the opposing sides; and
    • Avoiding language that is more appropriate for the campaigns conducted by the opposing sides.

    As part of the analysis, the LCS also prepares a fiscal impact statement for each measure, taking into consideration fiscal impact information submitted by various state and local agencies, proponents and opponents, and other interested persons. The blue book will include a summary of each measure’s fiscal assessment, and the full fiscal impact statement for each measure will be available on the blue book website. At a minimum, the summary must include:

    • An estimate of the measure’s effect on state and local government revenues, expenditures, taxes, and fiscal liabilities;
    • An estimate of the amount of any state and local government recurring expenditures or fiscal liabilities; and
    • For a measure that modifies the state tax laws, an estimate of the impact to the average taxpayer, if feasible.

    The LCS submits a final draft of each analysis to the Legislative Council Committee, which holds a public hearing to review the analyses. Anyone who is interested in testifying on the accuracy or fairness of an analysis may do so at this public hearing. The Legislative Council may change the language of an analysis upon a two-thirds affirmative vote of the council members. Before the public hearing, the LCS will post on the General Assembly website information for each analysis that includes the final draft, any comments and amendments submitted to the last draft mailed to stakeholders, a list of persons who had opportunity to comment on the last draft, and the text of the measure.

    Following the public hearing, the LCS mails copies of the blue book to each registered-voter household in the state no later than 30 days prior to the election. This year, the scheduled mailing date is Oct. 2. The LCS will also be mailing a Spanish language version of the book to each registered-voter household in counties identified by the U.S. Department of Justice under the federal Voting Rights Act.  In 2020, these counties include Conejos, Costilla, Denver, and Saguache. Staff contracts with a professional translation service to prepare these materials.

    In addition, when the blue book is ready for mailing, no later than September 10 this year, the LCS will post both the English and Spanish versions to the blue book page on the General Assembly website.

    If you would like more detailed information concerning the process for preparing the blue book, check the General Assembly’s website.

  • Making Sense of Committee Rules – A Brief Overview

    by Julie Pelegrin

    Editor’s note: This is the second in a series of articles on the legislative rules that LegiSource is reposting during the 2020 legislative interim. This article was originally posted February 6, 2014, and has been edited as appropriate. We will post the third article in three weeks.

    Following is a short overview of the more important committee procedural rules to help guide you through committee hearings. Except as specifically noted, the procedures described below apply to House and Senate committees.

    Committee Quorum:
    House Rule 25(i)(1) and (j)(10)
    Senate Rule 22(b) and (n)
    A quorum for a committee of reference in both the House and the Senate is a majority of the committee membership. A committee cannot take action on a bill or any other legislative matter unless a quorum is present. Passage of a bill, resolution, amendment, or motion requires approval of a majority of a quorum or a majority of those present and voting, whichever is greater.

    Committee Meetings and Consideration of Bills:
    House Rules 25(j)(1), (j)(1.5), (j)(6), and (j)(7) and 25A
    Senate Rules 22(a), (e)(1), (i), and (j) and 22B
    The responsibility for organizing and managing committee hearings lies mainly with the committee chairman, but the chairman of a House committee can delegate any duty or responsibility to the vice-chairman of the committee.

    Time and Place of Committee Hearings
    Each committee must meet at the times and places specified in the committee schedule, but a chairman can cancel a meeting by announcing the cancellation while the House or the Senate, whichever applies, is actually in session and before the meeting is scheduled to take place. In the Senate, if a committee is scheduled to meet upon adjournment, it will meet within 15 minutes after the Senate adjourns or recesses.

    Special Meetings
    A House committee may hold a special committee meeting on another day or at another place or time so long as the chairman announces the meeting as much in advance as possible and while the House is actually in session. Generally, a Senate committee may hold a special meeting only on the committee’s regularly scheduled meeting day. The chairman must announce the special meeting 24 hours in advance and while the Senate is actually in session. There is an exception during the last two weeks of session, or at any time with the President’s permission, that allows a Senate committee chairman to call a special meeting on a different day by announcing the meeting as much in advance as possible and while the Senate is actually in session.

    Every Bill Must Get a Hearing and a Vote
    Every bill that is assigned to a House committee must receive a hearing, consideration, and a vote on the merits at a scheduled committee meeting no later than the deadline for passage of bills out of committee. Although the Senate rules do not include this specific requirement,  article V, section 20 of the Colorado Constitution (commonly referred to as the “GAVEL Amendment”) requires that each measure assigned to a committee of reference receive consideration and a vote on the merits within appropriate deadlines.

    Order of Business
    The committee chairman sets the calendar for each meeting. But if a chairman holds a bill for seven or more days without calendaring it, the committee members can force the chairman to schedule the bill. A majority of the members of a Senate committee can simply request, at a regularly scheduled committee hearing, that the bill be scheduled for hearing. House committee members must submit to the chairman at a regularly scheduled committee hearing a petition signed by at least two-thirds of the committee members. A committee member can also force a hearing on a bill by making a motion to refer the bill to the committee of the whole when the bill is not on the committee’s calendar. In this case, the committee must consider the bill on its merits. In a House committee, if the motion to refer to the committee of the whole doesn’t pass, the bill is still pending before the committee for action.

    Chairman’s Authority
    During a House committee meeting, the chairman may limit testimony and discussion on a measure to the amount that he or she thinks is adequate to enable the committee to consider the measure on its merits. The House committee chairman may actually exclude testimony or discussion that he or she thinks is repetitious or irrelevant. The House committee chairman may ask a sergeant-at-arms to remove any person who disrupts the proceedings or endangers any person at a committee hearing.

    Although the Senate rules do not directly address the powers of the committee chair to control procedures within a committee hearing, Mason’s Manual Legislative Procedure, the source for parliamentary procedures in the Senate, supports the authority of the Senate committee chairman to maintain order and decide all questions of order in committee hearings.

    Motions, Voting, and Attendance
    Only committee members can make motions, and, in the House, each motion must receive a second to be debated. Each committee member, including the committee chairman, must vote on every motion that comes before the committee, unless the committee member has an immediate personal or financial interest in the bill. But the committee chairman does not vote twice to break a tie vote. If a committee member misses three consecutive scheduled committee meetings without being excused, the chairman must report the member’s absence to the floor leader of the member’s party.

    No Electronic Participation
    Members of committees of reference must be physically present at a hearing to participate. Members are not allowed to participate by telephone or other electronic means.

    Final Committee Action:
    House Rule 25(j)(3) and (j)(9)
    Senate Rule 22(f) and (m)
    A committee must take a recorded, roll call vote to take action on proposed amendments if at least one committee member objects to the amendment and to take final action on a bill. All recorded votes are available for public inspection.

    A committee takes final action on a bill by reporting the bill out of committee, with or without amendments, for consideration by the committee of the whole; referring the bill to another committee of reference, with or without amendments; or postponing the bill indefinitely. In reporting a bill for consideration by the committee of the whole, a Senate committee may recommend that the bill be placed on the consent calendar. A motion to postpone consideration of a bill for more than 30 days or until a date that’s later than the date for adjournment sine die is considered a motion to postpone indefinitely. A bill is also considered postponed indefinitely if a motion for final action on the bill dies on a tie vote, the deadline to report bills out of committee passes, and the bill doesn’t get delayed status.

    Reconsideration:
    House Rule 35(e) and (f)
    Senate Rule 18(e), (f), and (g)
    After a committee has decided a question, including taking final action on a bill, a member who voted on the prevailing side may move to reconsider the question. The procedures for reconsideration vary significantly between the House and the Senate.

    In the House, if a motion for final action on a bill dies on a tie vote, the committee doesn’t actually make a decision, so the bill is still before the committee and subject to any further motions without the need to reconsider. But, if the motion does not concern final action on the bill and the motion dies on a tie vote, a member who votes “no” is considered to have voted on the prevailing side and may move to reconsider the committee’s decision. A motion to reconsider in committee requires the affirmative vote of two-thirds of the committee members, except in the last two days of session during which it requires only a majority vote. A member must make the motion to reconsider at the same meeting at which the decision is made or at the next committee meeting. But the committee cannot reconsider the decision after the committee report that includes the decision is signed by the committee chairman and delivered to the Chief Clerk of the House. A committee member cannot prevent delivery of the bill to the Chief Clerk by giving notice to reconsider.

    In the Senate, if a motion on a bill dies on a tie vote, a member who votes “no” is considered to have voted on the prevailing side and may move to reconsider the committee’s decision. A motion to reconsider in a Senate committee requires approval by a simple majority vote. At the same meeting at which the committee makes the decision, a member can make the motion to reconsider or give notice of his or her intent to reconsider at the next meeting, unless the next meeting is after the committee passage deadline and the bill does not have delayed status. If the member who gives notice does not move to reconsider at the next committee meeting, the notice is considered withdrawn. The measure remains in the committee until the next committee meeting if there is an outstanding notice to reconsider.

  • Presidential Electors Must Keep the Faith

    by Julie Pelegrin

    The U.S. Supreme Court recently held in Chiafalo v. Washington that not only can a state require a presidential elector to vote for the candidate nominated by the elector’s political party, the state can also punish an elector who fails to do so—a so-called “faithless elector.” The case was based on the removal of faithless electors in both Washington State and Colorado. The Washington Supreme Court looked to the legal precedent interpreting the U.S. Constitution and upheld the constitutionality of punishing faithless electors. The Tenth Circuit Court of Appeals, in Baca v. Colo. Dept. of State, looked more to the plain language of the U.S. Constitution and how it had historically been applied and found that removing a faithless elector was unconstitutional.

    The U.S. Supreme Court resolved the issue by taking the same approach as the Tenth Circuit—looking to the plain language and the historical application—but coming to the opposite conclusion. Looking at the same language and interpreting many of the same facts, the Supreme Court reversed the Tenth Circuit with an 8-0 decision (Justice Sotomayor recused herself).  A brief comparison of the two opinions illustrates how easy it is for lawyers to reach opposite conclusions.

    First, a primer on how we really elect presidents and vice presidents. Article II, section 1(2) of the U.S. Constitution directs each state to appoint, “in such manner as the legislature thereof may direct,” electors to elect the president and vice president. These electors make up the Electoral College. In Colorado, when we vote for candidates for president and vice president, we are actually voting for a slate of electors nominated by the candidates’ political parties. In every state except Maine and Nebraska,[1] the winner of the statewide popular vote receives all of the state’s electoral votes. For example, if the Democratic Party’s candidates win the popular vote in a state, then the Democratic Party’s electors will participate in the Electoral College for that state.

    The Twelfth Amendment to the U.S. Constitution specifies the process the electors must follow in electing the president and vice president. Each elector casts a vote for president and a vote for vice president. The Electoral College votes from each state are tallied, and the candidates for president and vice president who receive the most votes win, so long as they receive a majority of all the votes cast by the Electoral College. If no presidential or vice presidential candidate receives a majority, the House of Representatives chooses the president from among the top three vote getters, and the Senate chooses the vice president from among the top two vote getters.

    Colorado is one of 32 states that, by statute, require electors to vote for their respective parties’ presidential and vice presidential candidates. After the 2016 election, however, some of the Democratic Party electors decided to vote for someone other than Hillary Clinton, hoping to entice some of the Republican Party electors to vote for someone other than Donald Trump and ensure that no one received a majority of the Electoral College votes. If they had been successful, the House of Representatives would have chosen the president. Obviously, this strategy didn’t work. Instead, in Colorado, when an elector—Mr. Baca—voted for John Kasich instead of Clinton, the Secretary of State replaced him. And in Washington State, three faithless electors who voted for Colin Powell instead of Clinton were removed and fined $1,000.

    In both states, statutes authorized removal of the electors. In Washington, the three electors sued in state court, claiming the statutes were unconstitutional and their removal violated their federal constitutional rights as electors. The Washington Supreme Court held that the Washington statute was constitutional and nothing prevented the state from requiring electors to vote for their party’s candidate and punishing them when they failed to do so. The Washington electors appealed to the U.S. Supreme Court.

    In Colorado, Mr. Baca filed a civil action in federal court, claiming that the Secretary of State violated his constitutional rights by removing him. The Tenth Circuit agreed with Mr. Baca, holding that, even if the state could require electors to vote for their party’s nominee, it could not enforce the requirement by removing a faithless elector and nullifying the elector’s vote. The Secretary of State appealed to the U.S. Supreme Court, which agreed to hear both cases to resolve the disagreement.

    Both the Supreme Court and the Tenth Circuit recognized that states may require presidential electors to support the presidential and vice presidential nominees of their parties.[2] The issue was, whether a state could enforce that requirement. Both courts also agreed that the U.S. Constitution is silent on whether a state may remove a faithless elector. But that’s pretty much where the agreement ended.

    The Tenth Circuit found there is no implied power for a state to remove an elector because the elector isn’t fulfilling a state duty; the elector is fulfilling a federal duty. But the Supreme Court looked at the state’s unfettered power to appoint electors, which includes the power to impose conditions on the appointment—like who the elector has to vote for. The Supreme Court concluded that removing an elector who fails to meet those conditions is just a natural extension of the power to impose the condition itself.

    The Tenth Circuit looked to the “plain language” of Art. II, Section 1(2) and the Twelfth Amendment. Using contemporaneous definitions, it determined that the terms “elector,” “vote,” and “ballot” clearly imply that electors are to have discretion and exercise individual choices in voting for candidates.

    The Supreme Court, however, noted that the “plain language” doesn’t specify that electors must make their own choice when voting, like some state constitutions did when the constitution was written. The federal constitution could have said that, but it didn’t. The Court also noted that the terms “elector,” “vote,” and “ballot” don’t have to connote independence. Electors had been pledging to vote their parties’ tickets for years before the Twelfth Amendment was written, and those votes were counted even though they were not the result of an independent choice.

    Finally, the Tenth Circuit looked at history and original intent. Citing the Federalist Papers and former Supreme Court Justice Joseph Story’s commentary on the constitution, it found that the authors of the constitution intended electors to exercise their independent judgment; Justice Story had complained that electors had been pledging their votes for years, which was never the authors’ intent. The Tenth Circuit also found 165 instances of faithless electors, and all of those votes were counted even though the electors broke their pledges.

    The Supreme Court countered all of these findings. The Court refused to allow the Federalist Papers to override or add to the actual language in the constitution. The Court noted that as early as 1796, voters expected electors to vote the party ticket and, citing Justice Story and others, recognized that electors did just what they were told to do. And finally, the Court identified 180 instances of faithless electors—out of 23,000. As such, those instances were mere anomalies, only one of which was even contested. That elector’s faithless vote was challenged and was upheld, but the elector came from a state that did not have a pledge statute. The Court observed that one instance in 200 years “hardly constitutes an historical tradition.”

    Based on its reading of history and the law, the Supreme Court found that states, for much of the last 220 years or so, have been requiring presidential electors to keep faith with their parties and the voters, and there’s no constitutional requirement to change that now.

     

    [1] In these states, the candidate who wins the popular vote in each congressional district gets the electoral vote for that district and the two remaining electoral votes go to the candidate who wins the statewide popular vote. So both Republican and Democratic Party electors may participate in the Electoral College for these states.

    [2] In the earlier case of Ray v. Blair, the U.S. Supreme Court had upheld the states’ ability to require presidential electors to vote for their parties’ candidates.