In 2020, Colorado Governor Jared Polis allocated $1.6 billion of federal CARES money on his own, outside of any legislative process. Majority Democrats pronounced themselves satisfied with the results.
At the same time, the governor was essentially ruling by decree, having declared a never-ending state of emergency over the coronavirus (it still hasn’t ended). In the 2021 session, majority Democrats in the legislature killed every bill to limit this state of emergency, or to require legislative approval of future ones.
Add to that the fact that Governor Polis is funding key advisory positions through philanthropic gifts and grants. We should remember that he who pays the piper calls the tune.
Colorado is clearly confronted with a partisan legislature unwilling to rein in a friendly governor.
Amendment 78 would deal with all forms of so-called custodial money coming from sources other than Colorado taxpayers, from federal grants to legal settlements. It would require the legislature to designate how the money is to be spent. While it is awaiting authorization, interest from custodial money, which currently creates additional unaccountable cash for the executive to dispense at its whim, would go to the general fund, also controlled by the legislature.
In short, Amendment 78 would make sure that custodial money was subject to the same regular order as the sales taxes or income taxes that you pay, and that the governor couldn’t just use it to pay off his friends.
This is how things are supposed to work. When the Founders designed our system, they built in a broad diffusion of power among many levels. The federal separation of powers mimicked the structures already in place at the state level. Legislatures, not executives, were given the power of the purse. The Founders had seen how the crown, or the crown’s appointees, used money to keep legislatures in line, preventing them from truly representing the people who elected them. It also ensures an open and public debate about how to spend the public’s money, not back-room deals among the governor and a few legislative leaders.
Similarly, states were to remain sovereign entities, not merely departments of the federal government, as provinces are in most European countries. They have their own taxing authority and legislatures, and if the federal government allocates money to them, they are permitted to spend that money how they see fit. The federal government may attach strings with that money, but states are permitted to reject those conditions along with the funds, or to test the limits of those constraints.
Opponents of Amendment 78 never address the constitutional issues, instead relying on appeals to efficiency and inconvenience. It would disrupt how the state operates, they say. It would increase the workload on legislators, they say. Legislative Council might have to hire more staff, they say.
Cry me a river. (Lord knows, Colorado could use the runoff.)
The only reason this might be disruptive is because the state government let itself get sloppy about how it was handling this money in the first place. There’s no reason why gifts can’t be put into escrow until the legislature meets. And for rare emergencies, the governor can always do what he should have done over the CARES money in the first place – call a special session to dispose of it.
Speaking about the CARES grants, State Senator Dominick Moreno, who – and I can’t stress this enough – has a degree in American Government from Georgetown University, went so far as to claim that having “a fight about who allocates the money is kind of silly.” I’m not sure what they’re teaching at Georgetown these days, but senator, that’s exactly the sort of fight you’re supposed to have.
Federalism and separation of powers aren’t inconveniences or silly disruptions – they’re at the very heart of how political power is distributed in our system, and frame the kinds of political debates and discussions we should be having. That the Democratic leadership in our legislature doesn’t seem to understand this invites a sharp rap on the knuckles by the state’s citizens.
We live in a time when basic American principles about how we are governed appear not merely to be in retreat, but in a rout, especially here in Colorado.
Amendment 78 offers a chance to start on the road back to those basic governing principles.
Joshua Sharf is a Denver resident, a former vice-chair in the Denver County GOP, and regular contributor to Complete Colorado
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