The first installment in this three-part series explained why Colorado’s retail bag law (House Bill 21-1162) is more about cynical partisan politics than about landfill space or the environment. The second installment explained that, although the law’s supporters call themselves “progressives,” the measure is definitely anti-progress. That installment demonstrated how HB 21-1162 furthers the far left’s goal of converting America into a Third World nation—a nation poor, desperate, and subject to politicians’ every whim.
The basic scheme of HB 21-1162 is this: Retailers (except for politically-favored retailers and those in politically-favored schools) must charge 10 cents for each bag composed of materials produced by politically-disfavored people. The charge is a tax, but the sponsors called it a “fee” so we wouldn’t get a chance to vote on it under the state Constitution’s Taxpayer’s Bill of Rights (TABOR). They added a clause that prevents us from voting under the state Constitution’s provision for referendum (Article V, Section 1(3)).
The law requires the retailer to retain four cents of the 10-cent tax and send the rest to local government. Local government must use it for certain politically-favored activities—including specified kinds of public propaganda.
Beginning Jan. 1, 2024, this tax continues for paper bags, but plastic bags are banned entirely.
HB 21-1162 was poorly drafted. A loophole allows a retailer to give customers as many free bags as they want, so long as the retailer distributes them in a location away from the cash register. This is because the tax applies only to sacks provided “at the point of sale.” So far as I know, retailers have not yet used this loophole.
Unintended (?) consequences
HB 21-1162 contains other drafting errors. It provides that 60 percent of the tax goes to local government. But the bill’s supporters never bothered to ensure that arrangements were in place for receiving the money. As CBS-Colorado’s Shaun Boyd recently reported: “While the law says retailers have to send 60% of the money they collect to local governments, it doesn’t say what they should do if local governments don’t want the money.”
Boyd then quotes Grier Bailey of the Colorado Wyoming Petroleum Marketers Association: “There’s 64 counties, 267 some odd cities and very few of them outside the major Denver metro area has set-up processes for us to remit that fee back to local governments.”
The story continues: “[Grier] says the way the law is written, retailers were required to start charging 10 cents per bag this month and hold on to the money for more than a year while local governments figure out whether they want to enforce the law and collect their share of the money or not. . . . In the meantime, Bailey says the money sits on retailers’ books, accruing interest and subject to taxes.”
Doubling down on stupid
Leftists never address bad consequences by admitting a mistake and repealing their defective legislation. They never allow freedom and the market to work. Instead, they double-down on stupid: They use the consequences as an excuse to grow government even more. (This sometimes makes me wonder whether those bad consequences are always unintended; in fact, from my political experience, I know they are not.)
The CBS Colorado story tells us how one of the measure’s sponsors wants to respond to this particular unintended consequence: “State Rep. Alex Valdez is one of the prime sponsors of the new law . . . Valdez is looking into possibly creating a state enterprise to hold the money.”
In other words, Valdez wants us to pay for his inexcusable mistake with yet another government agency. And not coincidentally, that agency would be an “enterprise,” and therefore exempt from TABOR and voter oversight.
Living off our money
Politically-jaded conservatives sometimes say, “We conservatives participate in politics using our own money. Leftists do the same: They participate in politics using our money.”
The American Left is subsidized heavily by our dysfunctional and bloated federal government. In many cases, the subsidies come from federal spending programs of dubious constitutionality. The subsidies work in various ways. First, a disproportionate number of “progressive” activists are employed in jobs directly or indirectly, wholly or partly, funded by the federal government. (Because of student loan programs, this now includes almost all university professors.) Second, the feds finance “non-profits” involved in left-wing political activism, such as organizations doing “community organizing” or generating climate change propaganda. Third, mainstream media rely heavily on government sources for their stories and marching orders. Fourth, federal grants often are targeted to advance leftist goals: During my years as a state university professor, I learned that federal money fueled many of my colleagues’ dumbest projects. (By contrast, the Independence Institute, like every other policy or political action organization I’ve worked with, receives no government money.)
It’s probably fair to say that, without federal support, the American Left would wither and blow away like dry leaves in autumn.
Rep. Valdez—the man CBS Colorado called a “prime sponsor” of the bag law—exemplifies how the feds fund the Left. According to his campaign website, Valdez is “the CEO of Colorado’s largest residential solar company.” The solar business depends, of course, heavily on government favors.
Thus: You and I pay Rep. Valdez’s legislative salary. We also subsidize his corporate salary. He reciprocates by harassing us and robbing us of our freedom.
What a guy!
Dividing power from responsibility
The first two installments showed that the bag law is designed to benefit Democratic Party constituencies while punishing the rest of us. Like most “progressive” measures, it’s more about playing politics than doing good.
HB 21-1162 also exemplifies another Leftist motif: punish the innocent for the sins of the guilty.
One of the law’s goals supposedly is to reduce “plastic pollution”—i.e., littering. Yet it punishes the vast majority of responsible people who do not litter. It does nothing about the slobs—including, but not limited to, the vagabonds (“homeless” in Leftist liturgy)— who do the actual littering.
In this respect, HB 21-1162 reminds me of how “progressives” address crime: Indulge the guilty with no-bail policies, catch-and-release, and legal technicalities, while punishing innocent, law-abiding gun owners with people-control laws.
The tax on sacks illustrates how power-freaks have highjacked Colorado. What was once one of the freest states in the nation is well on the way to becoming a “progressive” hell-hole.
Fortunately, the bag law also offers opportunities for push back.
Retailers can distribute carry-out sacks at places away from the cash registers. Customers can engage in civil disobedience by refusing to pay bag fees or by importing plastic bags from elsewhere. (I just brought in a bunch from Montana.) And citizens can organize a voter initiative to reverse the law. The Colorado Secretary of State’s handbook for putting a voter initiative on the ballot is here.
Robert G. Natelson, a former constitutional law professor who is senior fellow in constitutional jurisprudence at the Independence Institute in Denver, authored “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015).
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