With the passage of HB 1057, have Democrats once again killed your right to vote on fracking, this time in 2016?

Protestors in Boulder confront Congressman Jared Polis a day after two ballot measures concerning local control over oil and gas extraction were suddenly pulled from the ballot on Aug. 4, 2014, as part of a political compromise with pro-oil and gas Democrat, Gov. John Hickenlooper. With the passage of HB 1057, Hickenlooper and Colorado Democrats may have once again prevented a vote on fracking, this time in 2016 and with no help from Polis.
Joel Dyer

On Aug. 4, 2014, more than a quarter of a million signatures belonging to Colorado voters were on their way to the Secretary of State’s office for the purpose of putting two citizens-initiatives that would potentially amend the state’s constitution on the November ballot. The initiatives, known as Amendments 88 and 89, would have offered greater control to local communities over oil and gas extraction/fracking, as well as establishing a 2,000-foot setback between drilling operations and inhabited buildings. But as few Coloradans will forget, at the last minute, the ballot measures were pulled as the result of what was touted as a political compromise between the initiatives’ principle financial supporter Democratic Congressman Jared Polis, and oil and gas industry supporter, Democratic Governor John Hickenlooper.

As previously reported by Boulder Weekly, there was pressure being put on Polis to pull the initiatives by state and national Democrats as well as by “Big Green” environmental groups who had been working with the oil and gas industry on the push to replace coal with natural gas as an energy source. All of those pushing to pull the initiatives believed that the effort to create stricter oil and gas industry regulations would spark a massive $50 million-plus spend by the industry. Democratic Party funders and leadership believed that such mass spending to defeat the initiatives would also have benefited Republican turnout, causing the defeat of Democratic Senator Mark Udall, possibly bringing down Hickenlooper despite his pro-oil industry position and likely costing Democrats their control of the Colorado House or Senate or both.

Gov. John Hickenlooper pushed hard for the passage of HB 1057, a bill also pushed by the oil and gas industry.
Gov. John Hickenlooper pushed hard for the passage of HB 1057, a bill also pushed by the oil and gas industry. Wikimedia Commons

We now know that those Democratic Party/“Big Green” calculations were incorrect. Udall was defeated by Republican hyper-conservative Cory Gardner and Democrats lost control of the Colorado Senate despite the removal of the initiatives that many onlookers believed would have caused a massive turnout for Democratic candidates had they not been pulled.

Once the ballot initiatives were effectively killed by Democrats in 2014, it meant that they could not be placed on a ballot again until 2016. At the time they were pulled, Boulder Weekly warned voters that with a two-year window and tens of millions in oil dollars, it was likely that the oil and gas industry and its business supporters would attempt to use its money and influence over both Democrats and Republicans in the Colorado legislature in an attempt to alter the long-established right of Colorado citizens to amend their state constitution via the initiative process. We suspected they would do this as a pathway to preventing voters from putting similar initiatives to those pulled in 2014 on the 2016 ballot or any other future ballot. It appears that this is exactly what has occurred.

Earlier this month, after intense lobbying by the oil and gas industry and its supporters, both the Colorado House and Senate passed HB 1057 and then sent it to the desk of Gov. Hickenlooper, where it was enthusiastically signed into law.

HB 1057 requires a fiscal impact statement to be printed on every petition for every ballot initiative. It also changes the meeting attendance requirements. What this means is that instead of simply being asked for your signature in an effort to give local communities more control over the industrial practices of the oil and gas industry in neighborhoods, you will first have to see a note about the costs of implementing the proposed initiative prepared and written by a state government that has hardly hidden its support for the oil and gas industry. For instance, if the petition aims to restrict fracking, the note would likely say that, should this initiative pass, the state would receive less tax revenue from oil and gas. The note would also go on to threaten that if fracking is limited, funding for public services would be cut, says Lois Court (D-Denver), one of the sponsors of the bill in the House.

Making sure that the electorate is informed is a good thing. When it comes to the oil and gas industry, those who oppose HB 1057 believe that the state will intentionally be creating a one-sided message in order to pacify the industry and thwart initiatives that could hurt its bottom line. For instance, a cost analysis note on local control over drilling operations would not include any analysis of benefits to air, water, human health, tourism, property values or quality of life, even though several of these categories could create greater positive economic impact to the people of Colorado than any revenue that will ever be generated by the oil and gas industry.

It’s not just progressives who oppose HB 1057.

“They’re disenfranchising people,” says Dennis Polhill, a senior fellow at libertarian think-tank the Independence Institute. He adds that 1057 is just the latest example of Colorado legislators trying to make the initiative process more difficult for average people.

The bill was also opposed by progressive organizations like Food and Water Watch, which viewed it as a blatant attempt by the oil and gas industry and Gov. Hickenlooper to hamper citizens’ ability to fight fracking, says the organization’s regional director Sam Schabacker.

“When you only see that limited fiscal impact statement, people will be less wiling to sign,” he explains. “When less people are willing to sign, it’s harder to get something on ballot. We don’t have the deep pockets of the oil and gas industry, so when they throw more barriers like this in place, it just makes it harder for people to participate in the democratic process.”

Those opposing the bill were part of an unusually bipartisan coalition, notes Katie Dahl at Common Cause, another organization that testified against HB 1057.

The fact that both liberals and progressives opposed the bill is what makes it so unusual that both Democrats and Republicans in the House and Senate wound up passing it. Critics clearly believe that HB 1057 passed for one reason and one reason only: the pressure being put on legislators by the oil and gas industry and the Hickenlooper administration.

“There were a ton of lobbyists on this bill,” says Sen. Matt Jones (D-Louisville), noting that just on the way into the vote, one of his colleagues was approached by three different lobbyists — all of them specifically urging him to vote yes on 1057. Jones voted no on the bill despite the pressure.

Records confirm HB 1057 was one of the more heavily lobbied bills of the year. Lobbyists file reports with the Secretary of State each time they lobby on a specific bill. For HB 1057, more than 700 reports were filed. The Colorado Oil and Gas Association lobbied in support of the bill nine times.

Courtesy of Matt Jones

Jones believes the outcome of HB 1057 was “absolutely” influenced by these lobbyists.

“People should have access to petitions without a bunch of extra language added just to confuse them,” he says. “And why are you just looking at fiscal impacts?”

The Blue Book, state ballot information booklet, already provides more comprehensive explanations of each issue, including its social and environmental impacts, he explains. He speculates that proponents of HB 1057 simply intend to make it harder to pass ballot initiatives.

As to Jones’ argument that the Blue Book — which is mailed to every voter before each election to, in part, explain the fiscal impacts of every initiative on the ballot, including less quantifiable aspects such as impacts to the environment or public health — already does what supporters of HB 1057 claim the new bill was needed to do, not all of the bill’s supporters, including its sponsors, agree.

The bill’s House sponsor, Lois Court (D-Denver), acknowledged to BW that the Blue Book already provides voters with a fiscal impact analysis of ballot initiatives.

“It’s the same information,” she says. “It’s just sooner.”

But one of the bill’s Senate cosponsors, Senator Jerry Sonnenberg (R-Sterling), disagrees with Court.

“There is no fiscal impact included in the Blue Book,” he says. “That’s why I think [1057] was important.”

Boulder Weekly told Sonnenberg that his co-sponsor Court had stated otherwise, and he suggested that she must have misunderstood. This would not be the last time that Sonnenberg would accuse a colleague of misunderstanding what was going on with HB 1057.

Because of his belief that Colorado citizens should have access to the ballot without having to jump through political hoops designed to impede the process, Jones worked to get the 18 votes necessary to defeat HB 1057 in the Senate.

On first vote, it appeared that he had succeeded as 18 senators voted “no” and 17 “yes” in support of the bill. But that vote would not stand.

Sonnenberg was about to turn up the heat.

The real process behind passing HB 1057 

When the smoke cleared from the first vote in the Senate, Sonnenberg says he was surprised that the first-year Republican senator had voted against his bill.

“I thought I could count on him for a yes,” Sonnenberg says.

Senator Chris Holbert (R-Parker) says he hadn’t realized how close the vote would be when he cast his “no” vote. He had anticipated that 20 senators would vote against the bill, and his vote wouldn’t matter as much. As the “no” votes were counted, he says he saw lobbyists react immediately.

“There was a response from the lobby that, well, some people have noted was audible,” Holbert explains. “And that’s unusual in the capitol, so I looked carefully at my vote.”

Holbert says that until then, he hadn’t realized how vested the lobbyists were in this particular bill.

Shortly after the bill had been defeated on the initial vote, Jones observed Holbert across the aisle.

“A lot of pressure was put on him,” Jones explains. “You could see other Republicans and their leadership talking to him.”

One of those Republicans was Sonnenberg. Sonnenberg says it wasn’t difficult to change Holbert’s vote.

“I asked him about it, and he said, ‘Oh, shoot,’” Sonnenberg explains. “So I don’t know if he just didn’t know what bill we were on.”

Holbert recalls their conversation differently. He had initially voted against HB 1057, he says, because it requires both citizen representatives of an initiative to show up at meetings. If one of them misses the meeting, their initiative is thrown out. Holbert didn’t want to support a new restriction on the ballot initiative process, he explains, because ballot initiatives are so crucial to Colorado’s democracy.

But after the vote, Sonnenberg told Holbert that this new rule wasn’t really anything new.

“He said, ‘No, they already have to be at the meetings. Now it just includes the fiscal meeting,’” Holbert recalls. “When I realized that having both there at the meeting is not something new, that helped me realize, yes, I can support this.”

As to Sonnenberg telling Holbert that 1057 isn’t applying a new burden or standard regarding attendance at the meetings, again not even the bill’s sponsors can agree.

Sen. Jerry Sonnenberg (R-Sterling) co-sponsored the bill in the Senate and applied pressure to insure it passed.
Sen. Jerry Sonnenberg (R-Sterling) co-sponsored the bill in the Senate and applied pressure to insure it passed. Wikimedia Commons

Court says the bill does create a new requirement.

“No, it used to be that only one [of the two citizen representatives] was required to be there,” she says. “No, we didn’t create a new meeting. It’s that same meeting.”

After his initial first vote of “no,” Holbert went outside and had a conversation with Court, he says, which also caused him to reconsider. Apparently she didn’t counter Sonnenberg’s inaccurate information about meeting attendance that was given to the first-term senator.

“I was like, ‘Oh, we’re not setting a new condition there?” Holbert recalls. “That was enough for me to vote yes.”

So now that the bill is law, if either of the two persons required to be at a meeting were to have a personal emergency and not be able to attend, tough luck. Even something as simple as being in a fender-bender on your way to the meeting would cause your initiative to be withdrawn.

Court notes that while this is a true result of the passage of HB 1057, the initiative would be able to be resubmitted, starting the whole drawn-out process all over again. If the original draft of 1057 had passed, missing such a meeting would’ve ended an initiative permanently. Court changed the bill because she says she listened to its critics, who were furious over the original language.

“We did all kinds of things to massage it, based on what opponents said,” she says. “They never were satisfied. So we passed it as best we could get with as much change as we felt we could do, other than, you know, not pass the bill at all.”

The Independence Institute’s Polhill acknowledges that Court’s people contacted him for input on the bill. And that he gave her suggestions on how to make the process more workable for average citizens.

“I’m not aware that any of those were considered or included,” Polhill says.

Others also agree that Court sought input from certain people, just not for the reason of making the bill more acceptable to its opponents.

“The only thing Lois Court did was bend over backwards to fulfill the wishes of the governor and the oil and gas industry, to make it harder for the people of Colorado,” Schabacker says.

Lois Court (D-Denver) sponsored HB 1057. It was not her first attempt to make citizens' initiatives a more difficult process.
Lois Court (D-Denver) sponsored HB 1057. It was not her first attempt to make citizens’ initiatives a more difficult process. Ballotpedia

Court confirms that Hickenlooper’s administration was in touch with her and wanted the bill passed. Other lobbyists and legislators also confirmed to BW that the governor had pushed hard for HB 1057.

“The state capitol is swarmed by oil and gas lobbyists,” Schabacker says. “They can pay a whole bunch of high-priced lobbyists to go in and execute their agenda. … The lobbyists come to every hearing, and circulate misleading information to legislators. … The end result is what we see with 1057. It’s something that serves their interests to make money.”

One of the lobbyists working on HB 1057 was Stan Dempsey, the president of the Colorado Petroleum Association.

“I’m trying to think,” Dempsey said when Boulder Weekly asked about his repeated lobbying in support of HB 1057. “I think we had mentioned our support to legislators, but going over there and spending, talking to members, we did not. … I think when we visited with legislators, it was kind of a ‘By the way, we support this bill.’”

But public records reveal Stan Dempsey filed lobbyist reports with the Secretary of State for lobbying specifically in support of 1057 on four separate occasions — as recently as March.

“We were very pleased that it passed,” Dempsey says. “And by the end, it was kind of fun to have the drama [with Holbert changing his vote].”

Dempsey doesn’t think proponents’ motivation was to limit ballot initiatives, he says.

“I do not for one minute think it will have any influence on a person collecting the signatures,” he laughs. “They’re being paid. You might be handed a clipboard out in the hot sun, and unless the person who approaches you is a volunteer, they’re being paid to get your signature. Often, they’re carrying multiple petitions on a variety of topics.”

He adds that faced with a hot sun and a variety of issues, a person might sign a petition without thinking it through properly.

“If somebody comes up to you and says, ‘Gosh, don’t you think it’d be reasonable to have a larger setback between an oil and gas well and a home?’ Well, gosh, that sounds pretty good,” he explains. “But don’t you think it would be wise to have a clue about the costs to the state? If that larger setback precluded the drilling of a well that would result in lost property tax revenue that would go to the county, that would go to schools.”

While school funding was frequently mentioned by proponents of 1057 such as Dempsey, the Colorado Fiscal Institute, a nonprofit that advocates for school funding, actually testified against 1057 because the organization believes that a state-issued fiscal impact statement will paint an incomplete picture of an issue, explains spokesman Tim Hoover.

For its part, the Colorado Petroleum Association was following the lead of a business-interest committee called Colorado Concern, Dempsey says, which rallied several groups to push for passage of 1057.

“Our organization was one of 38 that were in support of the measure,” says Colorado Concern President and CEO Tamra Ward. “And we have two contract lobbyists that were at the capitol on a daily basis. We just believe that additional transparency for Colorado voters makes good sense.”

That’s why the Colorado Petroleum Association supported it, too, Dempsey says.

But critics aren’t buying it,

“Transparency may be the talking point,” Schabacker says, “but what this bill is really about is wasting taxpayer money so we can give more power to the oil and gas industry.”

HB 1057 will cost taxpayers money because the state will have to pay legislative staff to analyze hundreds of initiatives introduced every election year — instead of just the handful that make it to the ballot, he explains.

HB 1057 isn’t Court’s first attempt to weaken the initiative process.

In 2014, even as the oil and gas industry was anticipating having to fend off several oil and gas related ballot initiatives, Court introduced a bill that would have fully doubled the number of voter signatures required to get an initiative on the ballot. Her 2014 bill would have also required signatures from all of Colorado’s congressional districts, making it nearly impossible for Colorado citizens to amend their state constitution.

But this time around Court assures her attempt to change the citizen initiative process is simply about information.

“I teach,” she says. “I think information is always valuable.”

It wasn’t always easy for Court to persuade her colleagues to vote for HB 1057. Holbert wasn’t alone in his indecision, she says.

“I had several members of the House say the same thing to me, like, ‘I’m conflicted, if I see you have the votes you need, will you release me from my commitment to you to vote yes?’ she explains. “Because our word is our bond. If we tell our colleague we’re voting a given way on their bill, and then at some point in the process, we rethink, it is really bad form to not talk to the sponsor about that.”

She says she does understand the opposition’s argument.

Sonnenberg, on the other hand, says opposing arguments are “bogus.”

“I think people are grasping at straws,” he says about people who, like Sen. Jones, believe HB 1057 is out of line with the Constitution.

It’s not Sonnenberg’s first involvement with ballot initiatives. Last year, he worked with a committee called Protect Colorado, which was promoting two initiatives: one that would have denied oil and gas tax money to municipalities with fracking restrictions, like Boulder, Longmont, Broomfield, Fort Collins, Lafayette and Boulder County; the other would have required a fiscal impact statement on ballot initiatives, just like HB 1057. Both were withdrawn before they made it onto the ballot, as part of the Polis/Hickenlooper compromise.

First term Sen. Chris Holbert (R-Parker) was pressured hard to change his vote on HB 1057 after his "no" vote cuased the bill to lose its first vote 18 to 17.
First term Sen. Chris Holbert (R-Parker) was pressured hard to change his vote on HB 1057 after his “no” vote cuased the bill to lose its first vote 18 to 17. Ballotpedia

As noted earlier, we now know that the Democratic Party wanted 2014’s amendments 88 and 89 pulled because they feared it would cause oil and gas spending that would result in election losses for the party, as well as the initiatives. Which raises the question of why Democrats have now supported HB 1057, which on the surface appears to be in conflict with the party’s proclaimed stance on environmental issues and democracy because passage of the bill has made it difficult to impossible for those who support local control over oil and gas extraction/fracking to place similar initiatives on future ballots? According to various media reports, it appears Democrats may have learned little from their last election defeat.

For instance, The Colorado Statesman speculates that Democrats played it safe this legislative session and supported HB 1057 because Democratic “Sen. Michael Bennett has popped up on recent lists of endangered Senate incumbents for 2016, making it even more important for Democrats to avoid provoking the oil and gas industry into uncorking a gusher of campaign cash that could wind up benefitting Republicans.”

It should be noted that this is the same Michael Bennett who voted in favor of the Keystone XL pipeline for likely the same reasons Democrats voted for HB 1057, namely self-preservation. It appears to be another example of Colorado Democrats’ willingness to support any and all manner of oil and gas extraction/fracking in order to win elections at the expense of the environment, human health and the fight against global warming.

Barring legal action by opponents of HB 1057, fiscal statements will now be added to ballot initiatives.

If history is any gauge, such legal action is at least a possibility. Numerous attempts have been made by past legislatures to restrict citizens’ rights to the initiative process. In fact, Colorado has gone to the Supreme Court on this issue more than any other state, according to Polhill.

The Supreme Court has consistently sided with the citizens of Colorado.

It’s unclear if any citizen groups will take the state to court to overturn HB 1057. Going to court costs money, and most citizens’ groups don’t have the funds.

So what will be the ultimate result of Colorado’s Democrats and Republicans banding together to help business interests, primarily the oil and gas industry, pass HB 1057? It depends who you ask.

“Grassroots people have no hope of using [the initiative process] now,” Polhill says.

“It’s business as usual,” says Colorado Concern’s Tamra Ward.

Joel Dyer contributed to the reporting for this story.

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