Republicans roll out repeals on ’10 legislation

Good luck getting ‘dirty dozen’ to guv
The Colorado Statesman

Statehouse Republicans wasted no time getting to the bills that they championed during the campaign season and beyond — eliminating the so-called “dirty dozen” tax exemption repeals, an Arizona-style immigration law, and a change to FASTER.

But the chances of most of them getting to Gov. John Hickenlooper’s desk, based on their committee assignments, are likely slim to none.

Just weeks after the Nov. 2 election, members of the Republican Study Committee of Colorado, an unofficial conservative caucus, promised to sponsor legislation on illegal immigration similar to Arizona’s Senate Bill 10-070. On Wednesday, they kept that promise with SB 11-054, sponsored by Sen. Kent Lambert, R-Colorado Springs, and 12 out of 14 of his Senate Republican colleagues. Not signing onto the bill: Sen. Ellen Roberts, R-Durango, and Sen. Jean White, R-Hayden.

Under SB 54, a police officer may arrest, without a warrant, any person who the officer believes to be an alien and is subject to a deportation order by the federal Office of Homeland Security, has been indicated or convicted of certain felonies, or failed to register with the federal government. Sen. Kevin Lundberg, R-Berthoud, told The Colorado Statesman that the bill would allow Colorado to enforce federal immigration law. “Our goal is to enforce the law. The law in Arizona was written to simply enforce federal law and held within that framework,” and Lundberg said he believes the law will pass legal challenges. “States have an obligation to follow and ensure that their laws will enforce that basic legal premise.”

The Arizona law deals with much more than enforcing immigration law as it applies to arrests of illegal immigrants; it also contains language pertaining to public benefits, employment, and smuggling. Lundberg said Wednesday that many of the issues addressed in SB 10-70 have already been covered under previous Colorado laws.

Senate Majority Leader John Morse, D-Colorado Springs, noted Wednesday that he had done his dissertation on community policing. He said he feels strongly bills such as Arizona’s, and SB 54, undercut community policing, which requires police officers to interact much more with their communities and can lead to greater cooperation with law enforcement. Enforcing an illegal immigration law could put police “in a position they don’t want to be in,” Morse said. And while the bill may not have a specific budgetary impact, it does cause police officers to make a choice regarding their time. “The time they’re spending on ‘enforcing immigration law’ is time they’re not doing something else,” he said, like answering other calls for service.

At least three bills have now been introduced with the intention of repealing all or some of the bills passed last year that lifted certain sales and use taxes. The so-called “dirty dozen” bills have been targeted by Republican lawmakers ever since their passage last February. And while the bills collectively were expected to bring in $140 million in revenue, Republicans claimed the bills would cost the state 15,000 jobs.

Topping the wish list for Republicans this week: SB 11-073, sponsored by Sen. Shawn Mitchell, R-Broomfield. Mitchell’s bill, which doesn’t yet have a House sponsor, takes a different approach to the repeal. The bill strikes the Department of Revenue’s authority to collect the taxes on computer software, as was contained in HB 10-1192. The rest of SB 73 reinstates the rest of the sales and use tax exemptions and credits repealed last year.

SB 73 also goes after fines for traffic infractions that occur in highway construction zones. Under the bill, higher fines could only be levied when one or more highway workers are actually in the zone where the infraction occurs.

Normally, bills that cover more than one subject, such as traffic infractions and taxes, aren’t allowed, but the bill title for SB 73, “concerning the modification of policies that result in increased payments to the state,” is broad enough to pass the Colorado Constitution’s single-subject rule. Morse told The Statesman that the bill likely would not have been drafted if it didn’t meet the single-subject law, which says bills can only deal with one subject and that subject must be clearly expressed in the bill’s title.

The repeal of a tax exemption on out-of-state sales, known as the Amazon tax, is contained in SB 73 and also in SB 56, which is being carried by Lundberg.

Under SB 56, out-of-state online retailers, such as Amazon, would not be required to collect Colorado sales and use taxes if the retailer’s activities don’t meet the “substantial nexus requirement” of the U.S. commerce clause as outlined in the Quill v. North Dakota decision by the U.S. Supreme Court.

It’s not the first time Quill has been cited in the battle over the Amazon tax. It was cited as a justification for requiring online retailers to collect the tax when HB 10-1193 was first introduced a year ago. In Quill, the Supreme Court said that in order for a state to collect sales and use taxes on an out-of-state retailer, that retailer had to have a substantial physical presence, or “nexus,” within the state. When Quill was decided in 1992, online commerce had not yet taken hold, and the Quill case applied only to mail-order business. However, since then, the case has been interpreted as applying to online retail sales. The Direct Marketing Association filed suit against the state last June in an attempt to overturn the 2010 bill.

Both of the tax repeal bills have been assigned to the Senate State, Veterans and Military Affairs Committee, which is chaired by Sen. Rollie Heath, D-Boulder. Heath was the primary Senate sponsor on all 12 tax exemption and credit bills, 11 of which passed and were signed into law by Gov. Bill Ritter. Heath told The Statesman that it was “highly unlikely” that he would support either of those tax bills. The 2010 legislation “protected $140 million for K-12 education, and [that funding] is no less critical this year,” he said.

In the House, the chair of the Agriculture and Natural Resources Committee is carrying a bill to repeal HB 10-1195, which lifted sales tax exemptions for agricultural compounds, pesticides and bull semen. Rep. Jerry Sonnenberg, R-Sterling, the primary sponsor of HB 11-1005, recently said that the 2010 bill has forced some Eastern Colorado farmers in his district to go to Nebraska for some of the products they previously purchased in-state, which deprives Colorado coffers of those sales taxes.

Sonnenberg’s bill has been assigned to his committee, and it is likely to pass the House, where Republicans hold a one-seat advantage.

Also in the House, Sonnenberg’s neighbor to the west, Rep. Jon Becker, R-Fort Morgan, is the sponsor of HB 1075, which would narrow the scope of projects that can be funded with FASTER license fees. Becker said that under HB 1075, FASTER fees would be used primarily for road and bridge projects. “I was frustrated to see that FASTER had components in it dealing with mass transit and bike projects, which don’t pay into FASTER dollars,” he said. Becker said he is supportive of mass transit and bike paths, and HB 1075 allows for the inclusion of bike paths if they are integral to the road project as a matter of public safety, such as at intersections. “With the conditions of our roads and bridges,” Becker said, “I wanted to make sure that those FASTER dollars, which come from automobile license fees, go back to roads and bridges.”

The Funding Advancements for Surface Transportation and Economic Recovery law (FASTER) was passed in 2009 and at its passage was estimated to bring in about $160 million annually, through higher motor vehicle license fees, primarily to pay for road and bridge repair projects.