February 12, 2016 12:22 PM UTC

Not So Fast There, "Party of No"

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• by: Colorado Pols

As the Colorado Independent’s Corey Hutchins reports, the debate over reclassifying the state’s hospital provider fee in a way that doesn’t subject it to the arbitrary limits imposed by the 1992 Taxpayer’s Bill of Rights (TABOR), thus avoiding still more painful budget sacrifices, took an interesting twist yesterday. You’ll recall that the session began last month with the GOP-controlled Colorado Senate hardening its position against reclassifying the hospital provider fee as an “enterprise” under TABOR, resting their predisposed stonewalling on an opinion from the nonpartisan Office of Legislative Legal Services.

Well, as Hutchins reports, that opinion isn’t the final word by a long shot:

As Coloradans wait for an opinion from Republican Attorney General Cynthia Coffman over what’s become the biggest political debate in Colorado, two former executive branch lawyers are weighing in with their own conclusion.

At issue is whether it would be constitutional to reclassify a billion dollar hospital program so money generated from it will not push general fund revenue over mandated limits under the state’s Taxpayer’s Bill of Rights. Democratic Gov. John Hickenlooper and many Democrats in the legislature want a program called the hospital provider fee redesignated so there’s more money in the budget to fund roads, education and other programs.

In a legal review released today by former attorneys for past governors Bill Ritter, a Democrat, and Bill Owens, a Republican, they say the Hickenlooper plan would be “legally sound and fiscally responsible.”

The opinion from OLLS that Cadman made a flamboyant display of at the beginning of the session was not binding. No one is impugning the motives of the General Assembly’s nonpartisan legal staff, but the fact is that they are sometimes demonstrated wrong in terms of how these questions actually play out in litigation. As the Denver Business Journal reports, this bipartisan legal opinion disagreeing with OLLS’s conclusion carries no less weight in the real world:

Trey Rogers and Jon Anderson — who served as legal counsels for former Democratic Gov. Bill Ritter and former Republican Gov. Bill Owens, respectively — wrote that the OLLS was incorrect in its conclusions about the ability to categorize the money as an enterprise fund. The provider-fee fund would offer the service of helping hospitals defray the cost of providing care to patients and should not be considered as general revenue that can be used, like other pots in the general fund, for any service the state offers, Anderson said.

“Our courts have said that statutes enacted by the General Assembly enjoy a strong presumption of constitutionality and will not be overturned unless the statute is unconstitutional beyond a reasonable doubt,” Rogers added. “It is hard to imagine a court would find a provider fee enterprise to be unconstitutional beyond a reasonable doubt.”

In addition, former Attorney General John Suthers, now the Republican mayor of Colorado Springs, agrees that reclassifying the hospital fee revenue is legally workable:

“The way hospital provider fees are accounted in the state budget has created a serious problem,” Suthers said in a statement. “If this situation is not addressed soon, important state programs will be cut that negatively impact Colorado Springs and every other local community in Colorado. Transportation funding, in particular, will continue to suffer. Based on my experience, I believe that some form of a hospital provider enterprise could be designed to be constitutional under state law.” [Pols emphasis]

By sanctifying a nonbinding OLLS opinion that just happens to match with their political goals, Senate Republicans are trying to use the hospital provider fee situation as leverage to force cuts elsewhere–consistent with the party line this year that “entitlements,” in particular the expansion of Medicaid under Obamacare, are choking out various other priorities like roads and K-12 education. But as our friend Jason Salzman has explored in able writeups this week, that’s a false argument–Medicaid is not busting the budget.

The threat here is the arbitrary limit imposed by TABOR. Period.

The short version of all of this is that Senate Republicans are playing political games, in pursuit of their unwavering goal of cutting “the size of government”–reducing government, as right-wing anti-tax crusader Grover Norquist so famously said, to a size where you can “drown it in a bathtub.” A realistic assessment of need is not what is driving their agenda, but an ideological conviction that government is “too large.” Just as we’ve seen in Kansas under Gov. Sam Brownback’s ideological slashing of public revenues, the end stage of this agenda has no regard whatsoever for the damage done to critical functions of government we all rely on.

If cooler heads are to prevail, thus preventing millions in cuts that don’t have to happen, it’s Cadman, or at least someone in his one-seat conservative majority who must relent. If he doesn’t, it’s going to hurt things that people actually do care about. That’s not something we’d recommend in an election year, but it would be better for everyone–including Senate Republicans–to not inflict the pain to begin with.