On Saturday, Democrats finally used the rules of procedure in the Colorado House of Representatives to say to Republicans what those of us who put Democrats in charge of seventy percent of the lower chamber of the state legislature have been hoping they’d say for a pretty long time, “enough.”
Many breathless and hyperbolic speeches, tweets, and a both cynical and predictable torrent of fundraising appeals were created over the weekend after House Democrats invoked Rule XIV to end a filibuster conducted by a minority of the smallest minority party in legislative history in order to stop the majority from passing two pieces of legislation that are not only popular, but because of the endless barrage of gun violence that has become mere background noise in this country, and kept happening while the debate was underway, are clearly necessary.
Senate Bill 168 ends the objectively preposterous special exemption from civil liability that the firearms industry currently enjoys. It’s meant to create pressure and incentivize firearms manufacturers to perhaps stop marketing weapons of war like video games, Kid Rock albums, or Truck Nutz, to say nothing of holding them accountable. The idea of holding manufacturers and distributors accountable for the dangers of their products is not a new idea, nor will it, like any law created to stop any crime, prevent any shooting from occurring ever again. However, as the plague of gun violence continues its steady march through churches, synagogues, mosques, temples, apartment complexes, hospitals, movie theaters, night clubs, concerts, coffee shops, beer distribution centers, salons, restaurants, Walmarts, warehouses, military bases, offices, railyards, grocery stores, protests, abortion clinics, malls, music festivals, newsrooms, local government buildings, breweries, community colleges, universities, high schools, middle schools, and, of course, elementary schools, it’s pretty clear that the current legislative framework regulating firearms in the United States is not fucking working.
Few businesses enjoy the special exemption from liability that manufacturers of literal death machines do, and many industries have had these types of exemptions revoked in the past, often with popular and bipartisan support. The tobacco industry was granted an exemption from civil liability in the 1990s as part of a settlement agreement with the states after covering up the fact that their products were quite obviously killing people all the time, but even so, several states passed laws limiting or eliminating this exemption afterward. In 2006, Jeb! Bush’s Florida passed a law that eliminated the exemption from civil liability for tobacco companies, allowing individuals to sue them for damages related to smoking-related illnesses. Other states, such as Massachusetts, Minnesota, and Vermont, have also passed laws that have narrowed the tobacco industry’s exemption from civil liability so that families of those killed by companies that intentionally and counterintuitively murdered their own customers could hold them accountable.
In 2019, Washington State passed a law that eliminated the exemption from liability for oil and gas companies for damages related to oil spills. The law allows individuals and the state to sue oil and gas companies for damages related to oil spills and other environmental catastrophes, and also establishes higher safety standards for oil and gas companies operating in the state.
In 2019, Wokelahoma won a lawsuit against Johnson & Johnson for its role in the state’s opioid crisis. The case marked the first time a court held a drug manufacturer liable for the opioid epidemic, and the decision has since been upheld on appeal. The liberal bastions of Kentucky, West Virginia and Ohio also won or settled lawsuits with opioid manufacturers or distributors, and New York, Pennsylvania, Illinois, and Massachusetts settled suits against the supervillain-level-evil company Perdue Pharma. In fact, our own Attorney General Phil Weiser secured a nearly $400 million settlement for Colorado from J&J, Purdue Pharma, Teva, Mallinckrodt and McKinsey & Company.
In case you think accountability is limited only to comically evil corporations, other industries that have faced limitations or eliminations of exemptions from liability include the food and beverage industry, the automobile industry, and the medical device industry. Some states have passed laws that limit the immunity of automobile manufacturers in cases involving defective products, while others have passed laws that hold restaurants and bars liable for over-serving customers who later cause drunk driving accidents. In other words, if your products kill your customers, or others, there is a long list of state laws to hold you accountable for their deaths, which is good.
To pretend like this is a new idea or targeted assault on the firearms industry (so to speak) is to be either disqualifyingly ignorant or intellectually dishonest, especially for an elected lawmaker. I Googled all of that shit in like 10 minutes.
The other bill these conservative cerebral colossuses spent the weekend feebly failing to stop, Senate Bill 170, adds licensed healthcare providers, licensed mental health providers, licensed educators, and district attorneys to the list of people who could petition for an Extreme Risk Protection Order, temporarily removing firearms from people deemed by a judge to be a danger to themselves or others, and returning said firearms once the crisis has passed. In 2020, its first year of enforcement in the 27 out of 64 counties whose law enforcement agencies decided to, you know, actually enforce the law, it did exactly what it was supposed to do without one demonstrable case of abuse or misuse in which firearms were improperly confiscated. In fact, there were four instances of attempted misuse, and all four ERPOs were denied. 37 self-proclaimed “2A Sanctuary Counties” refused to enforce the law.
According to the Journal Injury Epidemiology:
“In 2020, 109 ERPO petitions were filed in Colorado; of these, 61 were granted for a temporary ERPO and 49 for a full (year-long) ERPO. Most petitions filed by law enforcement officers were granted (85%), compared to only 15% of petitions filed by family or household members. Of the 37 2A sanctuary counties, 24% had at least one petition filed, versus 48% of non-2A sanctuary counties. Across the 2A counties, there were 1.52 ERPOs filed per 100,000 population, compared to 2.05 ERPOs filed per 100,000 in non-2A counties. There were 4 cases of obvious law misuse; none of those petitions resulted in an ERPO or firearm confiscation.”
ERPO laws, also known as Red Flag Laws, are on the books in 19 states and the District of Columbia including such gun-grabbingly liberal places as Florida and Indiana. As you can see, the vast majority of these petitions in Colorado were filed by law enforcement, so it’s pretty bewildering why the party of “backing the blue” would choose not to back the blue when it comes to their assessment of people who should not be in possession of deadly weapons.
These were the two pieces of common-sense, argumentatively bulletproof (so to speak) legislation that House Republicans spent the better part of the weekend filibustering, ostensibly in an attempt to prevent them from becoming law.
Marshall Zelinger and Kyle Clark of 9News produced an excellent segment on Rule XIV which you should go watch for yourself before continuing to read this piece. They interviewed a recently defeated former Republican state representative who now lobbies for the Colorado Restaurant Association who tells the filibustering faction that they should have taken the deal that Democrats offered them instead of whining and sending fundraising emails because, quite frankly, there was no reason why the FORTY SIX members of the Democratic SUPER-MAJORITY should have even acknowledged the existence of the NINETEEN members of the SUPER-MINORITY. But, without ALL CAPS or italics, I can still argue that the filibuster itself was an exercise in stupidity and self-defeatism that only the least strategic and most politically myopic could have produced.
Taken to its logical conclusion, we must recognize that the rules of procedure only function when both sides approach them in good faith. Parliamentary democratic-republicanism is far from a perfect system, and there are reasonable critiques to make of this system of majoritarian lawmaking that I won’t get into here, and that members of the super-minority could likely not articulate with a gun to their heads (so to speak). However, each of these Republican state representatives, and even State GOP Chair Dave Williams himself having served in the state legislature, has consented to participate in the system as designed and enforced by taking the oath of office that allows them the power of being 1/65th of the lower chamber of the lawmaking body of the state. The oath, by the way, is a pledge to uphold the constitution of both the state and the United States, and the rules of procedure of the legislature in which they serve is a direct product of that constitution, therefore endlessly filibustering a bill they don’t like without the acceptance of any concessions whatsoever or the non-coercive ability to, frankly, ever shut the fuck up, is a direct violation of that oath, and for these self-professed piously religious politicians, literal blasphemy as the oath ends with “so help me God.” It seems to have required an enormous amount of patience, restraint, respect and tolerance from the Speaker of the House to have not leapt from the podium and wielded the one weapon sanctioned in the chamber for a clearly unintended purpose, however, it is worth noting that the gavel the presiding officer holds in the legislature is pretty heavy.
If Democrats were to have abandoned their own top agenda items in exchange for the GOP strategy of simply continuing to allow people to be randomly mowed down by gunfire every single day when confronted with this genius strategy from Republicans, what on earth kind of behavior would that incentivize going forward? Why wouldn’t these legislative terrorists simply continue to not shut the fuck up for the rest of the session, thereby holding the entire legislature, and by extension, the entire State of Colorado hostage and preventing the super-majority from passing their preferred policies?
In their best-case scenario, if Republicans were to ever recapture the majority (unlikely to occur in our lifetimes but let’s just put on our special imagination hats for a minute), what would prevent Democrats from treating them exactly the same way? Are we really to believe that this particular group of geniuses uncovered the magic killswitch for all legislative efforts going forward, RIP lawmaking March 29, 2023, forever and ever, amen?
No, that’s clearly absurd, which is why it’s a damn good thing Rule XIV exists, and why I hope you agree that it was absolutely necessary to invoke in order to move the goddamn thing along and try to actually do something about the gun violence epidemic in this state which is now the number one killer of children in the United States. These people want to make performing or in many cases obtaining an abortion a crime punishable by death with every molecule of their beings, but have abandoned any pretense of trying to prevent the senseless murder of children after they’re actually born.
At least yesterday’s Republicans pretended to care about combating gun violence, blaming mental health or lax security or even supporting Mike Pence or Rick Scott’s ERPO bills. Today’s Colorado House GOP, at least, has resigned themselves to the constant rat-tat-tat of gun violence, instead concerning themselves with banning common, often life-saving medical procedures like tubal ligations or trying to make it legal to spread disinformation about “abortion reversal pills” that do not fucking exist.
It shouldn’t be necessary to do something like invoke Rule XIV, but because a faction of the super-minority in the Colorado House of Representatives has no ability to operate in good faith whatsoever, and the business of the people must actually be done, it’s a good thing Democrats invoked this rule and that these bills will in one form or another end up on the Governor’s desk.
Ian Silverii is the founder of The Bighorn Company, a progressive political consulting firm, and the former director of ProgressNow Colorado. His wife is U.S. Rep. Brittany Pettersen (D-CO).
