How the Colorado General Assembly Works, 1216 COBJ, Vol. 45, No. 12 Pg. 33

• Author: Herrick K. Lidstone, Jr., Jeremy Schupbach, J.

45 Colo.Law. 33

How the Colorado General Assembly Works

Vol. 45, No. 12 [Page 33]

The Colorado Lawyer

December, 2016

Herrick K. Lidstone, Jr., Jeremy Schupbach, J.

Legislative Matters

The next session of the Colorado General Assembly will begin in January 2017. This article briefly summarizes the legislative process in Colorado.

Laws are like sausages. It is better not to see them being made.¹

The first regular session of the 71st General Assembly is scheduled to begin on January 17, 2017. The 70th General Assembly adjourned sine die on May 11, 2016, and once again proved that legislation and sausage-making have a lot in common. Nevertheless, a number of bills supported by the Colorado Bar Association and metro-area chambers of commerce were enacted,² while other more divisive bills died in the House or Senate.

This article provides a brief overview of the legislative process as a guide to understanding the upcoming legislative session. It highlights some of the legislature’s 2016 work to illustrate the legislative process.

Sausage-Making 2016

The Colorado General Assembly is and in recent years has been controlled by two parties that are as different as night and day, except in their dedication to their governing philosophies as defined by their respective caucuses. Any member who strays very far from the party line on a bill important to the caucus (notwithstanding article V, section 22a of the Colorado Constitution³ ) may risk political and personal consequences, such as loss of committee assignments or a lack of caucus support for the member’s legislative priorities. While the party platforms encompass a variety of issues, a simple shorthand for purposes here is that the Republicans promote individual liberty and are wary of governmental overreach, while Democrats are more likely to look to government as a way of solving problems. Each chamber’s majority—currently, Democrats in the House and Republicans in the Senate—runs its agenda through this filter and, as a result, bills that result from compromise and consensus between the parties pass, while “statement” bills driven by party ideology often die in committee hearings controlled by the other party.

One major issue the 2016 legislature attempted to address was how to find more money for transportation. The Democrats were against bonding for highways and wanted a new revenue source to pay for maintenance of existing roads and transit. Republicans opposed creating new revenue sources because this would have translated to new taxes. There were attempts to break this philosophical log jam by getting business groups and local governments to coalesce around an opportunity to redefine the hospital provider fee into a statutory enterprise. This measure would free up about $200 million of existing revenue in exchange for bonding for transportation to move forward. In the end, negotiations broke down during the last days of the session and both bills died in the opposite chamber. This basic political dynamic played itself out on multiple fronts: energy, banking, agriculture, and construction, to name a few.

On May 15, 2016, the front page of The Denver Post described the 2016 legislative session as follows:

How should the state conduct presidential primary elections? Should the state repeal its constitutional spending caps to allow for more spending on classrooms and roads? How should the state draw political district boundaries? Should grocery stores be allowed to sell full-strength beer and wine?⁴ And what is an appropriate minimum wage? The partisan divisions between a Democrat-led House and Republican-controlled Senate, not to mention a back-and-forth governor, led to gridlock on these issues . . . .

The good news is that some bills, including certain business bills (HB 16-1270, HB 16-1329, HB 16-1330, and HB 16-1333), were noncontroversial and passed through both houses with bipartisan support.

The Legislative Process

Although it may look like sausage-making, the legislative process is governed by the Colorado Constitution and rules for both houses.

Threshold Constitutional Requirements for Bills

Before a bill is introduced into the legislature, it must meet two constitutional requirements: the “single subject” requirement⁵ and the “enacting clause” requirement.⁶

The more well-known of these requirements is the single subject rule: A bill cannot contain more than one subject, and that subject must be clearly expressed in the bill title.⁷ If a bill contains items that are not included within the subject specified in the bill title, a court may hold that those items are unconstitutional, but the rest of the bill, as long as it fits within the subject of the bill title, will not be deemed unconstitutional.⁸ This requirement leads to an interesting give-and-take among legislators who want a broad subject but also want to prevent a “Christmas tree” bill—a bill with a subject so broad that it is subject to amendments that may have nothing to do with the original purpose. For example, the sponsor considered a bill for the 2016 General Assembly entitled “Concerning business entities” to address the Uniform Commercial Code,⁹ limited liability companies,¹⁰ Colorado Corporations and Associations Act,¹¹ and partnership matters.¹² Leadership in the House and Senate felt that the title of the proposed bill was too broad, and the bill was broken into four separate smaller bills addressing specific subject matter areas: HB 16-1270 (Colorado Uniform Commercial Code), HB 16-1329 (Colorado Limited Liability Company Act), HB 16-1330 (Colorado Corporations and Associations Act), and HB 16-1333 (Colorado Uniform Partnership Act and Uniform Limited Partnership Act).^13]

Bill titles are carefully crafted and worded by sponsors and supporters to preclude political gamesmanship and to ward off unfriendly or “poison pill” amendments.

A corollary to the single subject requirement ensures that a bill, once introduced, retains its objective.^[14] The General Assembly is not permitted to amend a bill so significantly that the bill no longer accomplishes its original purpose,^15] as that purpose is expressed in the bill title, but a bill can be altered to include an appropriation clause.^16] Generally, bill titles cannot be changed, although they may be narrowed (but not broadened) in certain circumstances.^17] To be constitutional, each bill must begin with the phrase, “Be it enacted by the General Assembly of the State of Colorado.”¹⁸ As a matter of practice, if a bill is amended to remove the enacting clause, the bill is considered dead.

Constitutional Requirements for the Legislative Process

The Colorado Constitution also addresses the legislative process. Each bill must be read by title when introduced, and at length on two different days in each house of the General Assembly.¹⁹ Similarly, all “substantial amendments made thereto shall be printed for the use of the members before the final vote is taken on the bill.”²⁰ The bills are only passed “by a vote of the majority of all members . . . on two separate days in each house,” and the final vote must include the names of those voting and their “ayes” or “noes” entered on the journal of the House or Senate, as applicable.^21]

Between the first reading and the final two readings and votes, bills are referred to a committee of each chamber, which must consider the bill “upon its merits.”^22] If approved by the committee, it will be reported “to the committee of the whole, with or without amendments.”²³

Finally, before sending legislation to the governor for signature, the presiding officer of each house must sign all bills and joint resolutions passed by the General Assembly.^[24]

It is also important to note article V, section 22a of the Colorado Constitution, which prohibits a party caucus from requiring members to follow a caucus position in voting within the General Assembly and provides that members are permitted to vote in party caucuses on matters directly relevant to the selection of officers of the caucus and the leadership of the General Assembly, but not on legislation. A member who has a personal or private interest in any measure or bill pending before the General Assembly must disclose that interest to the house that the member belongs to, “and shall not vote thereon.”^25]

The Governor’s Signature

When a bill passes both the House and Senate and is signed by the presiding officers, it is presented to the governor for signature.^26] The governor then has three choices under the Colorado Constitution:²⁷

• sign the bill, whereby the bill becomes law;

• veto the bill and send it back to the House and Senate to overturn the veto or amend the bill; if the bill is amended, it is sent back to the governor; or

• if the governor fails to either sign or return the bill within 10 days of its passage during the legislative session, it becomes law without signature. If the General Assembly adjourns before t he end of that 10-day period, the governor has 30 days after the date of adjournment to either sign or veto the bill, or the bill becomes law.

For example, the 2016 General Assembly adjourned on May 11, 2016. Thus, the governor had until June 10 to act on any bill sent to him on or after that date or the bill would become law without signature.

Effective Date

A crucial aspect of legislation is the date when a bill, approved by the General Assembly and signed by the governor (or allowed to become law without the governor’s signature) becomes effective. Generally, bills may have one of two styles of effective dates. The first is referred to as a “safety clause” and the second is considered a referendum approach. This is governed by article V, section 1(3) of the Colorado Constitution:

The second...