Jimmy’s Colorado Politics Column | Gas “fee” flunks legal laugh test

Written by on April 13, 2021

Let’s be real: Colorado’s roads suck.  We’re long overdue for improvements of our crumbling roads and bridges; in some places, expansions or new construction are necessary.  But as with anything government does, you have to pay for it somehow. 

Leading Democratic legislators are gearing up to drive a sweeping, $4 billion transportation bill.  Reports indicate the expenditures will likely span an 11-year period, with over 60% going to road improvement projects, roughly 20% for electric vehicle subsidies and recharging stations, and around 16 percent to transit (i.e., light rail), sidewalks and bike paths.  

The plan will be financed in part through available federal stimulus money ($430 million) and $112 million per year from the general fund.  Significantly, the bill will institute several new, so-called “fees” for us to pay beginning July 2022:

  • A new gas “fee” of 2 cents per gallon, climbing to 8 cents in 2028.
  • Another new 30-cent “fee” on every Uber and Lyft ride you take, with future increases tied to inflation.
  • Another new 25-cent “fee” on deliveries — every Amazon package, UPS shipment or DoorDash order you make.
  • Another new 6-cent-a-gallon “fee” on diesel fuel, up to 8 cents in 2026
  • Yet another “fee” of $9 annually for electric vehicles, rising to $90 by 2031 (ensuring electric vehicle drivers don’t get passed by)

It’s hard to see what makes this fancy new gas “fee” any different from the gas tax we already pay.  If we’re being honest, the only real distinction is that, by calling it a “fee,” politicians don’t have to ask their constituents to vote on it.  It’s a runaround of the Taxpayer’s Bill of Rights, or TABOR, which constitutionally mandates that Coloradans vote on new taxes or tax increases.

Democrats know voters won’t approve a gas tax hike, or a new tax on delivery services or ridesharing rides, so instead they’ll manufacture a new “fee” without ever pitching the idea to us. 

Unfortunately, the Colorado Supreme Court has previously let this slide.  The court upheld similar taxes if the politicians simply call them “fees.”  That whole vote-of-the-people thing is such a quaint notion, you see.  We can just let legislators bypass our Taxpayer’s Bill of Rights and not worry about such a thing.

Even with the Supreme Court endorsing this circumvention, there are some big problems this go-around.  For example, Proposition 117, passed by Colorado voters last year, empowers the people to approve all new enterprise funds financed by fees.  While it doesn’t mandate a vote on all fees, Prop 117 was a strong statement that Coloradans think calling a revenue measure a “fee” shouldn’t exempt it from voter approval.

Just as SB19-181 — the massive and destructive oil and gas bill — was an affront to voters’ resounding disapproval of Proposition 112 (regarding development setbacks) in 2018, so, too, is this plan an affront to Colorado voters’ intent with fees and TABOR.  The gas “fee,” though, is quite unconstitutional — even under Supreme Court precedent.

The court has ruled that legislators may impose a fee if the primary purpose “is to finance a particular service utilized by those who must pay the charge.”  But gasoline isn’t just used for vehicles. Farmers and ranchers need it for tractors; landscapers use it to refuel lawnmowers and weed-whackers; snowmobilers need it in the mountains.  There are homeowners with snowblowers, golf courses with golf carts and water skiers with boats…

Those uses have nothing to do with roads or bridges, yet everyone who needs gas for their lawnmower, snowblower or tractor must still pay the tax — err, fee.  Isn’t that a flagrant violation, and doesn’t it necessarily make it just another gas tax by a different name?

Moreover, in 2019, the Supreme Court affirmed the secretary of state’s power to increase fees on business registration and other activities without a vote of the people.  The Court decreed that upping the SOS fees was “a change resulting in an incidental and de minimis increase in government revenue” and is therefore “not a new tax or a tax policy change.”  They also concluded that, because SOS fees are “ministerial, nondiscretionary adjustments to taxation schemes authorized by statutes enacted before TABOR,” they “remain valid, even without voter approval.”

The 2019 decision rebukes the gas “fee.”  There’s already a gas tax in place; the reason Democrats want a new gas “fee” is because it’s a central component to their funding scheme.  Read: NOT “an incidental and de minimis increase” — by a long shot.  Moreover, this “fee” would be brand-new and therefore not a “ministerial, nondiscretionary adjustment” to something instituted before TABOR.  (In fact, both points render the four other new “fees” unconstitutional, too.)

Every Coloradan knows we must fix our roads.  Legislators could allocate a portion of sales taxes on automobile-related products to transportation, for instance, or consider any number of creative options using existing revenue sources.  But new fees — especially flagrantly unconstitutional ones — are not the right road to take.

Click here to read the rest of Jimmy’s April 13 column at Colorado Politics, a sister publication of The Washington Examiner.

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