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Nicolais: Does legislative testimony matter anymore in Colorado?

With most committee and floor votes pre-ordained, the testimony of hundreds of citizens seems to be falling on deaf ears

Elections matter. Both parties trot out that timeless mantra when a majority from the other side passes legislation on party-line votes.

But in an increasingly polarized political environment, elections may matter even more than ever before. More and more, policy debates seem settled by the first Wednesday in November rather than on the floor of legislative chambers. Colorado’s current legislative session is a perfect case in point.

In early January, before state representatives and senators shuffled back to the state Capitol, The Colorado Sun ran a terrific primer on lawmaking and lobbying in Colorado. The last subsection in the piece focused on testifying on legislation, but warned: “Often, committee members will enter the room decided about a particular issue.” It seems truer words may never have been written.

Mario Nicolais

Sadly, it appears that many make up their minds far in advance of public hearings, maybe before the actual wording of the bill is drafted, and potentially before being sworn into office.

In turn, committee hearings no longer represent opportunities for considered input and debate, but legislative attrition tests for legislators waiting to cast pre-determined votes.

For example, earlier this year, I testified before the Senate State, Veterans, & Military Affairs Committee against the National Popular Vote.

I wrote a column on the topic (which elicited a thoughtful response from the bill sponsor), worked as an election law attorney for more than a decade and have advocated for the state to review alternative electoral college allocation strategies.

I came armed with stats, historical references and legal arguments at the ready to answer committee questions. But after my three minutes of allotted testimony time elapsed, the committee graciously thanked me and sent me on my way. Not a single question from a single member.

There were questions for some individuals who testified, though from my experience and observation at the hearing, even these were pre-planned Kabuki dances meant to elicit specific soundbites.

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It is exceedingly rare to see members of both parties question the same person. And when it does happen, it’s usually a proxy-fight between committee members and not an attempt to gain real insight.

I had no allusions that my powers of persuasion and meticulously crafted argument would sway a vote or two. Or even give a single member a moment of pause. In an outcome so predictable I would have bet my home on it, the measure passed out of committee on a 3-2 party-line vote.

This process plagues both parties equally; by definition, a party-line vote requires members from both sides to adhere to their particular tribe.

And given the blue tsunami that swept through the state last November, an aggressive and partisan legislative agenda seemed all but inevitable, ensuring both parties would scramble to their respective ramparts.

That said, it must be demoralizing for the hundreds of citizens who spend hour after hour waiting to testify on controversial bills whose outcomes are pre-ordained. True, much of the testimony they wait to deliver is political astroturf — testimony drafted by the political operatives for special interests and handed out to individuals to read from — but not all of it.

I saw a recent social media post that derided oil and gas companies for astroturfing one of the session’s most controversial bills by allowing employees to skip work if they were testifying.

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In contrast to that derision, I felt it underscored a primary argument the oil and gas industry has made, namely that the livelihood of thousands of employees could be jeopardized by the proposed bill. These employees weren’t just doing the bidding of their boss, they legitimately worried about their ability to put food on the table in the future.

Of course, there were equal numbers of concerned citizens who argued that the change would protect the health and safety of their families.

I doubt any of the testimony from either side made a single legislator waiver even a little.

In an ideal world, our elected officials debate matters of public importance, elicit expert testimony and engage the citizenry before making up their minds. Unfortunately, it looks like we are moving further away from that ideal world with each passing election cycle.


Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, health care and public policy. Follow him on Twitter: @MarioNicolaiEsq


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