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BLAKE: There's no such thing as a 'FASTER' 'TABOR'

Driving blurred lights highwayAll Senate Bill 11 would do is make the FASTER law a little less unconstitutional than it is now.

Hint: The unconstitutionality has nothing to do with TABOR. That battle has already been fought and, as usual, lost in the courts.

S.B. 11, sponsored by Sen. Tim Neville, R-Littleton, would require that all the money raised by the FASTER surcharges on auto registrations, car rentals, overweight trucks etc. go for bridge repairs and other road safety projects.

No longer would $15 million be set aside annually for mass transit projects run by the Colorado Department of Transportation (i.e. Bustang) or by local transit agencies around the state.

S.B. 11 passed the Republican-controlled state Senate Wednesday on a party-line 18-16 vote. Now it heads for the House, where Tim’s son Patrick, R-Castle Rock, is the sponsor. But the Democrats hold a 34-31 majority and will almost certainly kill the bill. They’re not going to let a U.S. Senate candidate like the senior Neville earn a feather for his cap.

The FASTER bill — “Funding Advancements for Surface Transportation and Economic Recovery” — was approved by the legislature in 2009. It created the Colorado Bridge Enterprise, a government-owned entity chartered to repair bridges around the state. It is work previously handled by the Colorado Department of Transportation.

The CBE is run by the same 11-member board that controls CDOT.

Gov. Bill Ritter admitted on a radio talk show at the time that the FASTER bill was a deliberate attempt to avoid TABOR.  “You can change a registration fee without going to the ballot and so I think that was partly the thinking here,” he told Mike Rosen.

The TABOR Foundation, backed by the Mountain States Legal Foundation, sued to nullify the bill in 2012 on grounds that:

1) The “fees” collected under FASTER were actually taxes not authorized by the voters, and

2) The CBE wasn’t an enterprise exempt from TABOR at all, since it wasn’t 90 percent self-supporting and clearly wasn’t operated independently from state government.

The district court, which knew from previous decisions that the Supreme Court hates TABOR and will always uphold legislative evasions, found the CBE to be a legal enterprise and rejected the suit. In 2014 the intermediate Court of Appeals upheld the trial court. Last June the Supreme Court declined even to hear a further appeal.

But there is another provision in the state constitution, much older than 1992’s TABOR, which would seem to prohibit spending any FASTER money on transit projects.

Article X, Section 18, says that after July 1, 1935, “the proceeds from the imposition of any license, registration fee, or other charge with respect to the operation of any motor vehicle upon any public highway in this state and the proceeds from the imposition of any excise tax on gasoline or other liquid motor fuel … shall, except costs of administration, be used exclusively for the construction, maintenance, and supervision of the public highways of this state.”

You’ll note that it specifically refers to registration fees as well as excise taxes. So the General Assembly says the FASTER money comes from fees? Then clearly those fees cannot be spent on mass transit projects, only on highway construction, maintenance and supervision.

Photo and copyright: Tony's Takes - used by permission
Photo and copyright: Tony’s Takes – used by permission

That is language so crystal clear that only justices on the Colorado Supreme Court could misconstrue it.

But this article apparently wasn’t discussed during the 2009 debate, since it affected only the fees going to transit. The opponents’ main argument was against the bridge money, and they considered that a TABOR issue.

During debate in the Senate Transportation Committee last week, witnesses stressed the merits of S.B. 11, not the constitutional issues. Dennis Polhill of Golden noted that CDOT traffic counts aren’t reduced, and sometimes increase, when parallel light rail is opened. Therefore more money should go to highways.

Natalie Menten, a director of the Regional Transportation District but speaking for herself, echoed that theme. She said the extra $15 million at issue should go to highways, not mass transit, because 100 percent of the population uses roads, and less than 5 percent use RTD. CDOT’s current budget is about $1.4 billion, she said, while RTD’s is $1.1 billion — way out of proportion to RTD’s usefulness.

During floor debate Tuesday, various foes of the bill noted how important local transit agencies funded by FASTER are to the handicapped. Perhaps so, said proponents, but the agencies should be funded through a separate bill, not through FASTER.

The unanswered question is, if the bill fails, will another suit be brought challenging the use of FASTER money for transit as unconstitutional?

Longtime Rocky Mountain News political columnist Peter Blake now writes once a week for CompleteColorado.com. Contact him at pblake0705@comcast.net You may re-publish his work at no charge and without further permission; please give full credit to Peter Blake and www.CompleteColorado.com.

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