It was 8:52 on a Saturday night when the bill died. The legislative session was barreling towards a close, constrained by the 120-day limit enshrined in the state’s constitution, and there was more business to get through.
Other bills had died in recent days, their fates taken in stride by sponsors who mostly knew how the votes would go before they were taken. This is one of the things that happens in each session’s waning days: bills die. But the death of SB-259 – which would allow casinos to extend lines of credit to customers, a practice which is already legal in 30-something other states – was different.
The vote scrambled party lines, with the bill ultimately failing 34 to 31 (the chamber has 46 Democrats and 19 Republicans). Though a dozen Republican lawmakers voted against it, Republican sponsor Ron Weinberg’s focus was on just one of them in the moments after the bill died.
“What I saw after the bill failed was that Rep. Weinberg went and immediately started speaking to Rep. Holtorf,” Democratic Representative Jennifer Parenti, who had a full view of the chamber from her desk on the back row, told me. “It was clear he was trying to get Rep. Holtorf to change his vote.”
“There was a lot of commotion that was happening around the side of the chamber,” immediately after the bill’s death, Rep. Jenny Willford said when we spoke last week.
“I noticed people running back and forth, there were folks running out into the lobby, which is typically frowned upon on Third Readings,” she added, noting that legislators are generally encouraged to remain isolated from outside influences during “Thirds” (a chamber’s final vote to approve or deny a piece of legislation).
“There was a lot of activity,” Holtorf told me, confirming the accounts. “The bill sponsors were going back and forth, working with a handful of folks in the lobby corps.”
“[Weinberg] went out into the lobby, then he came back in and spoke to Holtorf again. Then he went back out to the lobby, came back in, spoke to Holtorf again,” Parenti said. “This happened a couple of times – I don’t remember exactly how many – and, ultimately, Holtorf was the one who made the move for reconsideration.”
Fifty-eight minutes after the bill was pronounced dead, when a proper lull in the calendar arrived, a chastened-looking Richard Holtorf was escorted to the chamber’s lectern by Rep. Mary Bradfield, a member of Republican caucus leadership. There, Holtorf made a motion for SB-259 to be “reconsidered,” or brought up for another vote. Nine minutes later, the vote had been re-taken, a few votes had changed directions – including Holtorf’s – and the bill was pronounced passed on a vote of 33-32.
The bill was not one of the legislative session’s most important items. It did not seize the headlines garnered by the Polis-backed land use bill, nor did it engender the partisan rancor of a new raft of gun violence prevention legislation. The legislation was not entirely uninteresting: of the 681 bills considered by the state’s lawmaking body between January and May, the casino bill was one of the few which resulted in anything resembling a close vote. Democrats hold a 27-seat majority in the House, and an 11-seat majority in the state Senate, and the final vote tally on most bills reflects the lopsided representation the people of Colorado voted for.
Of the 681 bills considered this year, the casino bill was the only one resurrected from the dead and passed after being voted down. Not the land use bill. Not the fair workweek bill. Nothing intended to help anyone pay their rent or start a family. The only piece of legislation to pass via an extraordinary procedural turnaround was a bill to provide exclusive financial benefits to the casino industry.
The bill’s odd, singular fate raises a fundamental question about where legislative outcomes actually come from. Why this bill and none of the others?
As I covered in my last column, our popular imagination of corruption is not particularly good. We know it’s happening, but we don’t know what it looks like. To observers seeing the drama around the SB-259 reconsideration vote unfold on Twitter, or hearing allegations about lawmakers switching their votes after talking to lobbyists, it’s easy to imagine promises being made or money changing hands – but that’s not what happened at all.
As I pursued the story of what happened with the casino bill, I realized that it’s not a story of personal corruption. Rather, it’s the story of a broken system, and how broken systems are bound to yield broken results.
On paper, the legislative process is an ideal of representative government. Voters elect representatives who share their values and priorities. Representatives go to the capitol to represent those values and pursue those priorities. When there is disagreement on the values and priorities, the representatives debate, and settle those debates with a vote. The values and priorities held by the largest group of representatives, and thereby the largest group of voters, are transformed into laws that are used to govern the state.
It’s a good system. Wars have been fought over it.
But the reality of Colorado’s “citizen legislature” — where lawmakers retain full-time employment outside of the legislature — is a system that ultimately bears little resemblance to that ideal process as it’s laid out on paper.
While the ways in which Colorado’s legislative process has departed from its ideal theoretical origins are legion, one warrants particular scrutiny in light of the chaos surrounding the casino bill: the calendar.
From the moment the General Assembly convenes each January, the state’s lawmaking body is constitutionally required to complete all of the year’s work in the next 120 working days. The constitution doesn’t just require that the work be completed in 120 days, it also entitles each of the state’s 100 legislators to at least five bills — meaning the state legislature is required to consider at least 500 bills in no more than 120 days, every year.
If legislators worked 24 hours a day for all 120 days, that would still leave them with less than six hours to spend on each bill.
The short time limit imposed on session, combined with the sheer mass of legislation working its way through the system during those 120 days, inevitably results in late nights, long meetings, and compromised decision-making abilities. It results in a deliberative process that has had all the time for deliberation stripped out.
It was in this chaotic milieu that the saga with the casino bill unfolded.
It was a late night after a long day at the end of a long week, approaching the end of the session. No one was batting their best inning — nobody, it seems, except for one of the lobbyists contracted on the casino bill, who had hung around the capitol that evening to see how it would shake out, instead of going home and monitoring the bill remotely like many lobbyists do.
Though I have not identified the specific lobbyist who remained in the building that evening — who Weinberg repeatedly left the chamber to speak with in the aftermath of the first vote — a Colorado Open Records Act request I filed for communications between the bill’s sponsors and lobbyists produced text messages between the bill’s Republican Senate sponsor, Sen. Mark Baisley, and Erin E. Snow, a lobbyist representing the bill on behalf of the Colorado Gaming Association.
“Hi Senator,” Snow texted Baisley at 9:16pm, 24 minutes after the bill had died. “SB 259 failed on House thirds by a close vote of 31-34,” she told him, explaining that they were going to attempt to overturn the result. “Would you be willing to reach out to Reps. DeGraaf and Bottoms to urge them to vote yes?” she asked, indicating two Republican legislators who had voted against the bill.
“Should I try to work folks for the reconsideration?” Baisley replied.
“Yes please. Can you text Bottoms and DeGraaf now?” Snow asked, adding, “This is all moving quickly. Thank you so much. We’re very close!”
“Done. Fingers crossed.”
At this point, it bears mentioning that the interaction above describes an intentional decision to break the rules of the House, which explicitly forbid the use of “any electronic devices for the purposes of transmitting or receiving voice or data communications, including but not limited to electronic mail and text messaging.”
While Baisley and the lobbyist jockeyed for support from DeGraaf and Bottoms, the bill’s Republican House sponsor, Ron Weinberg, saw Holtorf as the key to the decision.
“Holtorf and Catlin had flipped,” Weinberg told me last week. “They had told me yes and then voted no, so they went against their word.” When I asked how he was able to convince Holtorf to change his vote, Weinberg framed the decision as made entirely by Holtorf. “Holtorf felt really bad [about going against his word], which is why he did the reconsideration.”
While it’s clear that Holtorf did ultimately change his vote, it’s not clear why. I asked him that question when we spoke on the phone earlier this week. During a 20-minute conversation, it was the only question he didn’t answer. He did not, however, seem to “feel really bad.”
There are still parts of what unfolded that evening that remain mysterious. I’m not sure why Holtorf changed his vote, nor why fellow Republican Mary Bradfield changed hers. All I know is that they did.
When the reconsideration vote was tallied and the bill declared passed, even Baisley didn’t seem to understand how the feat had been accomplished.
“Erin, I don’t know how you did that but thank you. Impressive!” he texted the lobbyist.
“Teamwork makes the dream work!” she replied.
In a way, the answer to what happened with the casino bill is disappointing, at least in a narrative sense: there’s no conspiracy, no money changing hands, no crooked casino boss grabbing Richard Holtorf by the necktie and shaking him until he changes his vote. Rules were broken, but laws weren’t. From all I can tell, there doesn’t even seem to have been much planning. An opportunity emerged amidst the manufactured chaos of the legislative process, and the opportunity was seized.
There’s a more insidious factor lurking in the background of the story — the late night, the long day, the compromised decision-making, the reliance on lobbyists. Unlike the events leading to the overturning of the casino bill’s fate, these factors were the result of a plan — a plan hatched 35 years ago.
The time constraints placed on the legislative process disadvantage the citizenry, lessen the effectiveness of government, and tilt outcomes towards outside interests, and that’s exactly what they were intended to do.
Though the 120-day limit for legislative sessions may sound like a folksy hangover from our state’s days as a frontier territory — one of the many fictions capitol conservatives have long enjoyed — it was actually the result of a ballot initiative passed by a narrow vote in 1988, and supported by the same conservative forces which would successfully pass TABOR four years later.
The effects have not gone unnoticed.
“How can we be in that state capitol for 14, 16 hours, attending committee meetings til God knows when, on the floor for 10, 12 hours, constantly running through as many bills as you can throw at a dartboard and think that it’s healthy?” Holtorf commented. “Or that you as a legislator are going to be able to analyze all these things in a positive, healthy, good way and really be taking care of that legislative business at the top of your game?”
The problem with the time constraints is not just that they short-change legislators – forcing them into decisions on complex issues without enough time to become informed and prepared – but that they short-change the people legislators work for, the people who have to live with those decisions: us.
The other problem with the time constraints is that they benefit the players who are not bound by them: the special interests waiting in the lobby, looking for opportunities in the chaos — opportunities, for example, to bring a bill back from the dead and pass it while everyone is tired, distracted, and busy.
“There are many players under the Gold Dome who intentionally delay conversations just so that you have to legislate down to the wire,” Willford said of the penchant for experienced operators to use the time constraints to their own advantage. “I just don’t think that’s good governance at all.”
In short, the time limit serves to make legislators pieces on the game board — attempting to hop through as many hoops as they can in 120 days — while making the permanent, unhurried interests of corporations and the wealthy the players at the table.
Like TABOR, the 120-day limit for legislative sessions was a lab-grown effort to limit the effectiveness of government, and its effects were foreseen even before it was passed. The arguments against the initiative printed in the 1988 ballot information packet warned that placing a 120-day limit on session could “limit the time necessary for thorough consideration of the issues; restrict public testimony and input on major issues” and “deny citizens access to their strongest instrument for effective state government – the state legislature.”
Thirty-five years later, we are seeing those effects. We are seeing the limitations of attempting to work through a system that was broken on purpose, and which has never been repaired. How can we expect good outcomes from a system which was not designed to create them?
Three-plus decades ago, a group of determined ideologues set out to change a legislative process that wasn’t yielding the results they wanted, and they succeeded.
Perhaps we should do the same.
