Something unusual happened last week: The authority of Colorado Gov. Jared Polis was overridden.
Polis had issued an executive order allowing petition signatures for proposed ballot measures to be collected remotely — a lifeline to issue campaigns staring down the prospect of not being able to qualify for the November ballot due to pandemic precautions. On Monday, the Colorado Supreme Court unanimously ruled that no, Polis didn’t have the authority to do that.
It was the first major check on the governor’s power since March 10, when Polis, flanked by cabinet members, called the media to his office and declared a state of emergency in Colorado. Polis made clear through actions, if not words, early in the pandemic that he’d be the face of the state’s pandemic response, holding frequent press conferences — he rarely does so during normal times — that, for a period, were must-see TV broadcast throughout the state. He spoke for close to two hours at a time at various points, explaining data and strategy at length, attempting to convey optimism but also persuade residents to take precautions.
Since that March emergency declaration, the governor has had sweeping authority to control Colorado’s pandemic response path. He has issued more than 100 executive orders, according to a state tally, and led what at many points has been Colorado’s only fully functioning branch of government: The court system has dramatically scaled back proceedings, and the General Assembly has been in recess since mid-March except for a little over three weeks when lawmakers returned to finish their top priorities.
That has meant that enormous decisions have fallen largely to one man and his advisers. Which businesses can stay open? Who might face eviction, and when? Which freedoms and social norms are on pause? And, for a while, anyway: Which ballot measures might have a chance to qualify for November? With the state legislature having closed up shop for the year but the pandemic still far from over, that dynamic is likely to hold for months to come, with fewer checks and balances than exist in normal times.
It’s not atypical among the states, said Thad Kousser, a political science professor at the University of California San Diego who has examined governors’ roles during the pandemic.
“I don’t think we’ve ever seen all governors playing a role this prominent,” Kousser said. “What we see is a natural disaster hits a state, or another crisis, and suddenly a governor is elevated and appears on the national stage. What we’re seeing now is essentially a hurricane hitting every state at once, and that has elevated governors.
“A year ago, the story everybody was writing is why governors have disappeared from the national stage. I think the explanation was: They’re boring. They’re not polarizing. They’re not mobilizing. … The extent to which they have now risen above legislatures in prominence, and have risen above the president in approval ratings, is unprecedented.”
Polis’ empowerment reflects not only the national trend but also that his most potent would-be antagonists in Colorado have mostly stepped aside or concurred with his approach. Though they sometimes clash over policy, Polis and the Democrats who control Colorado’s state legislature generally share a common vision, and interviews with more than a dozen lawmakers show generally strong reviews for his pandemic response.
Lawmakers closed the Capitol from March 14 to May 26, then reconvened for a few weeks, passed a slew of laws that Polis supports, and ended their session. Democrats were unsuccessful in their few efforts to take policy in a different direction than the governor wished. They couldn’t get majority support to extend Colorado’s eviction moratorium, so they left it to Polis to deliver lesser protection. They backed down on a bill to eliminate business tax breaks, compromising with Polis for a much less ambitious package.
And then lawmakers went home.
“Our job is to pass laws, change laws, pass a budget. And his job is to enact those,” said Senate Majority Leader Steve Fenberg, D-Boulder. “And in an emergency, our laws that we have passed give him certain powers. It’s not because we want to enrich him with more power. It’s because we want one person in charge of ensuring basic safety for all Coloradans. … If you have 100 cooks in the kitchen, it’s hard to move the state forward.”
Lawmakers have complained at various points that they’ve felt not only excluded from the kitchen, but from the whole house. A number of them have told The Denver Post they’ve learned of some executive orders through press releases and media reports, and that particularly early on in the pandemic, the governor’s office wouldn’t tell lawmakers much more than it told journalists.
“I do think there are bruised egos, the feeling of a diminished level of consideration for the legislative role, legislative authority. That absolutely exists,” said state Sen. Dominick Moreno, D-Commerce City, who noted that he does not personally feel that way.
The frustration was reflected in the passage of a bill, HB-1426, that requires the governor’s office to hold three public briefings every year with budget writers and the legislature’s executive committee. The bill also requires the General Assembly to “promptly” receive notice of any executive order issued “in connection with the disaster emergency.”
“Republicans kept talking about curtailing the governor’s authority,” said House Speaker KC Becker, D-Boulder. “That was not something I was interested in. But having conversations publicly about what’s going on, where it’s not just happening through the press, but where legislators who represent entire communities can get more information — I think that’s important.”
Polis took feedback and has since changed how he runs briefings with the legislature, lawmakers said, though the passage of HB-1426 indicates they felt some need to ensure continued transparency.
“With this, as with all things, the legislature want to make sure they’re being consulted. That’s something I would urge going forward,” said Becker, who is term-limited from seeking re-election.
In other senses, though, lawmakers and the governor seem to be working in harmony, despite some reports to the contrary. For example, in May, Polis took some blowback for allocating about $1.7 billion in federal CARES Act money himself, when he had previously said he’d leave “the power of the purse” to lawmakers. Suggestions of a Polis power grab turned out to have been greatly exaggerated; he, in fact, had consulted closely with Democratic leaders on how the money would be spent, and most of them were comfortable letting him take charge.
“The money was spent on that timeline, in that manner, just to get it out the door as soon as possible,” Fenberg said. “He didn’t usurp us.”
Becker called it “an absolutely fair and appropriate way to do it.”
Republicans, unsurprisingly, do not share that view. There’s just not much they can do to alter the course, given their lack of power at the Capitol.
“I think Gov. Polis and his people are good people, and they’ve worked really hard,” said Moreno’s budget committee colleague, state Sen. Bob Rankin, R-Carbondale. “But the legislature’s not involved. Everything you read is, ‘the governor decides this’ or ‘the governor decides that,’ and it doesn’t look right to me.”
Polis has faced a lot of that criticism from Republicans during the pandemic. Many have accused him of “draconian” leadership, and one GOP leader famously compared his stay-at-home order to Nazism. He has also taken heat from progressives who say his responses to issues they care about — including coronavirus outbreaks in jails and prisons, the looming eviction crisis, and Black Lives Matter protests — have been insufficient.
But Coloradans mostly think Polis is doing a good job, according to polling that shows his approval rating rose from 50% last June to roughly two-thirds this May. He was one of the country’s first governors to begin reopening the economy, and Colorado has had relative success in containing the spread of the virus, even as surrounding states and others around the country are spiking and plunging back into crisis mode.
It’s a good thing they’re mostly satisfied with the product, because it’s what they’re likely to get — for the rest of this year, at least. The legislature isn’t due to return to the Capitol until January.
That’s not ideal, said Kousser, of UC San Diego.
“It’s is an arrangement and a style of governance that works in an emergency,” he said, “but it’s not empowering the districts that elected Republican legislators. It’s not providing the checks and balances inherent in the American system. And while we have laws that empower governors specifically in states of emergency, the long-term reaction, the rebuilding, that’s going to require three branches of government.”
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