Hurried. Chaotic. Contentious.
Any or all of these terms could be used to describe the first regular session of Colorado’s 74th General Assembly, particularly as it neared its constitutionally mandated end this past Monday at midnight. While the 120-day lawmaking period began back in January with a familiar cadence, with both newly elected and returning legislators easing into the work and proceedings focusing more on ceremony than actual policymaking, by the session’s halfway point decorum had largely turned to disarray and cordiality had given way to controversy.
Democrats entered into the session in an almost unprecedented position of power with a 46-19 supermajority in the House and a 23-12 near supermajority in the Senate. However, as more and more bills were introduced—a whopping 617 in total—it became clear that Democrats would not only need to navigate tense working relationships with their Republican colleagues but also within their own party in order to successfully pursue their policy priorities.
Following resounding wins this past November, Democrats bore the responsibility to deliver on both actual and perceived electoral mandates, ranging from solutions on affordable housing, criminal justice, gun violence and environmental protection, among many others. As the session went on, however, it became increasingly clear that the weight of that responsibility had caused intraparty fault lines to form. The earliest indication of that friction was the defeat of House Bill 1118 (Fair Workweek Employment Standards), an unusually aggressive labor measure that would have (among other provisions) required employers across a vast array of industries to guarantee employees certain shifts weeks in advance and, correspondingly, compensate those workers for deviations from that scheduling. That proposal ultimately failed on an 8-2 vote in its first committee of reference near the session’s midpoint but, in many ways, set the tone for many intra-caucus fights to follow.
For example, House Bill 1249 (Reduce Justice-involvement For Young Children), a proposal to remove all prosecutorial jurisdiction from children ages 10 to 12 for any crime short of homicide, passed the House but then languished in the Senate as more and more lawmakers raised vocal and public objections. Resultantly, the bill was largely gutted and converted into a mechanism for data collection and grant distribution on the second-to-last day of the session. In an even more high-profile dispute (and a very public defeat for Democratic Gov. Jared Polis), Senate Bill 213 (Land Use)—an affordable housing initiative that would have upended decades of local governments’ land use authority in favor of state-mandated upzoning and density requirements—died on the calendar after Democrats in both chambers could not agree on certain key provisions.
Meanwhile, by virtue of the margins in each chamber, Republicans were forced into an almost exclusively reactive position for much of the session, raising objections to Democrats’ priority bills at every available juncture but rarely able to effect policy changes on their own. However, as the lawmaking clock continued to tick, Republicans became increasingly opportunistic, using informal filibusters and having bills read at length to wear down their Democratic colleagues. In response, Democrats regularly scheduled weekend work periods and, in a stunning move, repeatedly invoked a rarely used rule to limit the time of debate on certain bills, much to the chagrin of House Republicans in particular.
In the session’s last three days, all of the aforementioned dynamics reached a boiling point. Both the House and Senate worked on a Sunday for the first time in 84 years. In addition to Senate Bill 213, four other bills died on the calendar. House Republicans walked out of the chamber Monday night before casting votes in protest of what they viewed as an unfair and rushed process on Senate Bill 303 (Reduce Property Taxes And Voter-approved Revenue Change), another governor-led measure to address ballooning property tax assessments that also implicated taxpayer refunds under the state’s Taxpayer Bill of Rights (TABOR). And, shortly thereafter, House Democrats clashed in an informal caucus meeting where first-year House Speaker Julie McCluskie (D) was criticized for not more aggressively championing the legislative priorities of the progressive wing of her caucus and tolerating politically incorrect comments and stall tactics from Republicans.
Because of the unpredictable (and sometimes outright ugly) political reality within the building, the state’s employers and broader business community were faced with as challenging a policymaking process as any in recent memory. While Colorado’s business community has been forced into a more defensive posture in the last four years since Democrats won a trifecta in the governor’s office, House and Senate in 2018, the 2023 session’s divisiveness caused otherwise entrenched stakeholdering and negotiating standards to oftentimes break down, leaving employers and business entities too often scrambling to ameliorate harmful legislation or otherwise protect their interests.
Please see below for a more detailed analysis on the most hotly contested issues debated during Colorado’s 2023 legislative session.
Housing and Property Tax
If one issue dominated Colorado’s 2023 legislative session, it was housing and property tax matters. The General Assembly steadily introduced a number of housing-related bills in the opening months of the session, including measures instituting a right of first refusal for local governments seeking to purchase and convert multifamily properties into affordable housing (House Bill 1190), banning future and repeal existing local growth caps (House Bill 1255), and repealing existing state statute preempting local governments from authorizing rent control within their respective jurisdictions (House Bill 1115), among others.
However, all of those proposals paled in both scope and depth once the Polis-led Senate Bill 213 was introduced. In its original form, the landmark legislation would have explicitly made land use and zoning decisions a matter of statewide concern, preempting traditional local government authority to make those decisions. Correspondingly, it also would have established a tiered system of delineating local jurisdictions (e.g., Urban Tier 1, Urban Tier 2 and rural resort communities) and instituted a set of upzoning, density and use by right requirements for each category. However, following resistance from a core set of Democrat senators in both the Local Government and Housing Committee and on the floor, those mandates were all but stripped out in favor of a more permissive proposal directing local governments to collaborate with the state on housing needs. Yet, things took a turn in the House, where a majority of Democratic members reinserted many of the core upzoning and use by right provisions, setting up a showdown with the upper chamber. But, by 8 .p.m on Monday it became clear that neither the House, Senate or the governor’s office would blink, leading to Senate Bill 213 dying on the Senate calendar upon adjournment sine die and handing Polis his first major defeat as governor.
At the same time, Polis was able to deliver on measures to combat Coloradans’ rising property taxes, at least in the eyes of his Democratic allies. With one week remaining in the session, Polis unveiled two bills to help preemptively offset these rates by adjusting Taxpayer Bill of Rights (TABOR) refunds (Senate Bill 303) and reducing property assessment rates (Senate Bill 304). However, after receiving widespread pushback that the two bills did little to help the state’s renters, Polis and legislative allies introduced House Bill 1311 (Identical Temporary TABOR Refund) with three days left in the session. The legislation provides that in years the state exceeds its constitutional revenue cap, TABOR refunds are flattened instead of the current tiered reimbursement system in which the amount of refunds taxpayers receive differ based on income. Notably, because of the intersection of House Bill 1311 and the TABOR refund mechanism in Senate Bill 303, voters must approve the referred measure that is a component of Senate Bill 303 for either bill to take full effect. While Democrats argued that the bill would help soften the blow of the increased rent landlords would levy based on property tax spikes, Republicans universally viewed the proposal as an attack on TABOR and generally decried the accelerated process by which all three bills were passed.
Employer and Business Legislation
In addition to the aforementioned House Bill 1118, Democrats pursued a variety of legislation with direct effects on businesses and employers. Perhaps most notably, Sen. Faith Winter (D) reintroduced her workplace harassment bill from sessions past, the Protecting Opportunities and Workers’ Rights (POWR) Act. This year’s version, Senate Bill 172, would have eliminated the existing “severe or pervasive” standard for workplace harassment, allowing a wider range of actions to give rise to a complaint. However, after stiff opposition from the business community as well as public employers such as local governments and state agencies, key concessions were made including the insertion of a more consensus legal definition of workplace harassment in line with case law and the formulation of an affirmative defense. Those changes led to key stakeholders, including the Denver Metro Chamber of Commerce and the Colorado Chamber of Commerce, to move from an amend/oppose position to neutral on the bill. Another bill of note was Senate Bill 105 (Ensure Equal Pay For Equal Work), a revisitation of Colorado’s 2019 equal pay law. At first, the bill was couched as a “fix” but in fact added increased risk of enforcement and further requirements upon employers, particularly relating to the disclosure of promotional opportunities.
Energy and Environment
This session’s energy and environment bills largely revolved around incentivizing electric vehicle purchases, expanding the regulatory authority of the soon-to-be renamed Colorado Oil and Gas Conservation Commission (COGCC) and strategies to further accelerate the timeline of the state’s carbon emissions goals. Among those, the most high-profile proposal relating to energy and environmental issues was House Bill 1294 (Pollution Protection Measures). Long before the bill’s eventual introduction on April 13, rumors were circulating around a progressive ozone measure that would not only further target the state’s oil and gas industry but also threaten the ability for businesses seeking or renegotiating emissions and air quality permits. In somewhat of a surprise, the governor’s office expressed their general angst around the legislation from the start and called foul on the bill’s initial $1 million fiscal note, countering that the measure would realistically cost upwards of $32 million. What was introduced as a wide-ranging bill that would have enabled any citizen to pursue legal action for injuries caused by any qualifying emitter (among a host of other provisions) was ultimately whittled down to an interim legislative committee tasked with studying ozone pollution in the state. On the penultimate day of the session, in response to continued threats of an extended filibuster by Senate Republicans or even a Polis veto, the sponsors further pared down some remaining points of contention through two final amendments. The first amendment squarely addressed the private right of action (instead, it allows allegedly impact parties to submit evidence of harmful pollutions levels), whereas the second removed the bill’s definition of the “cumulative impact” of emissions and instead requires the Colorado Department of Public Health and Environment (CDPHE) and COGCC to adopt a definition through a rulemaking process with stakeholder input no later than April 2024.
Public Safety and Criminal Justice
Public safety and criminal justice were top of mind for voters heading into last November’s election and took similar billing during the legislative session. In the wake of national and, tragically, local shootings, Democrats passed several gun violence prevention bills, including House Bill 1219 (Waiting Period To Deliver A Firearm), Senate Bill 169 (Increasing Minimum Age To Purchase Firearms), Senate Bill 170 (Extreme Risk Protection Order Petitions), Senate Bill 168 (Gun Violence Victims’ Access To Judicial System) and Senate Bill 279 (Unserialized Firearms And Firearm Components). That said, legislation to ban the sale and transfer of so-called assault weapons, House Bill 1230, failed in its first committee due in equal part to policy concerns as well as fear of the broader political ramifications among more moderate Democrats.
Other wider-ranging public safety and criminal justice bills faced similar scrutiny. In addition to House Bill 1249, legislation to prevent perpetrators of motor vehicle thefts from owning firearms (Senate Bill 22) and to increase penalties for indecent exposure to minors (House Bill 1135) were vociferously opposed by the progressive wings of the Democratic caucus. Perhaps most stunningly, those legislators were successful in halting the reauthorization of the Colorado Commission on Criminal and Juvenile Justice (CCJJ) in Senate Bill 158, arguing that the commission—a longstanding nonpartisan and impartial arbiter of public safety policy—too often stood in the way of more progressive criminal justice reforms.
This year, the legislature took on several issues related to health care, ranging from policies designed to improve access to behavioral health care, cap the price of EpiPens and lower the cost of other pharmaceuticals, and crack down on hospital fees. On that last item, lawmakers passed House Bill 1215 (Limits On Hospital Facility Fees), which constrains health care providers from charging fees to patients that are not covered by insurance for preventative care and requires hospitals to publicly disclose and post information related to their collection of facility fees. Relatedly, House Bill 1243 (Hospital Community Benefit) seeks to increase transparency around nonprofit hospitals’ community benefit implementation plans, which detail those hospitals’ charitable investments that earn them their tax-exempt status. The majority of the reporting and spending requirements were stripped from the original bill as it moved through the process, but the final version further directs how hospitals must engage and collaborate with their respective communities when establishing a community benefit implementation plan.
Also, after passing the Colorado Reproductive Health Equity Act (RHEA) last session to enshrine the right to an abortion in state statute, Democratic legislators returned with four reproductive rights bills in 2023. Specifically, these bills will shield people in Colorado who are seeking an abortion or gender-affirming care from criminal prosecution in other states (Senate Bill 188), require large private employers’ insurance plans to assist in covering abortion costs after 2025 (Senate Bill 189) and prohibits anti-abortion clinics from falsely advertising that they provide abortions (Senate Bill 190). The legislature also passed a bipartisan bill, Senate Bill 284, that will require insurance providers operating in the state to help cover a 12-month supply of contraceptives.
Contact a member of Brownstein’s Colorado State Government Relations team to answer any questions related to the 2023 legislative session and to help navigate the many new opportunities and challenges that will present themselves during the state’s 2024 legislative session.
This document is intended to provide you with general information regarding Colorado's 2023 legislative session. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.