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Special Types of Bills

Question

I'm a Senator. What does it mean when I'm told that my bill raises revenue?

Section 31 of article V of the Colorado Constitution, (aka the origination clause) states that all bills that raise revenue "shall originate in the house of representatives". This requirement is based on a similar provision of the U.S. Constitution.

Under Colorado case law, a bill raises revenue if it "provides for the levy and collection of taxes for the purpose of paying the officers and of defraying the expenses of government." Raising general fund revenue must be the principal object of the bill for the constitutional provision to apply. This provision does not apply to a bill that raises revenue for a cash fund.

If your bill raises general fund revenue, it should not be initially introduced in the Senate. Doing so would violate the origination clause and would give the bill's opponents a reason to object to its enactment. If a revenue-raising bill starts in the Senate and becomes law, it can be subject to legal challenge. You should consider changing your bill so that it is not revenue raising or finding a representative who will introduce it in the House.

My tax credit bill will reduce the amount of revenue that the state receives, but I'm told it raises revenue. How can that be?

In 1966, the Colorado Attorney General issued Opinion No. 66-3941 concluding that the origination clause prohibits a senator from introducing a bill that decreases revenues. Historically, legislative leadership has also taken this position, and the opinion was confirmed by the Attorney General in 1999.

I'm told I need a sunrise report. What does that mean?

Section 24-34-104.1, C.R.S., requires anyone proposing to regulate an unregulated professional or occupational group to submit the following information to the Department of Regulatory Agencies (DORA):
• A description of the group to be regulated; including a list of associations, organizations, and other groups representing the practitioners in Colorado, along with an estimate of the number of practitioners in each group;
• A definition of the problem and the reasons regulation is necessary;
• The reasons certification, registration, licensure, or other type of regulation is being proposed, and why that particular regulatory alternative was chosen;
• The public benefit of the proposed regulation; and
• The cost of the proposed regulation.
The proposal must include a statement of support for the regulation signed by at least ten members of the professional or occupational group to be regulated or by at least ten people who are not members of the group. DORA must prepare a sunrise report that analyzes and evaluates the proposed regulation and submit the report to the General Assembly within 120 days after receiving the regulation proposal.

What does it mean to sunset a governmental board or commission?

In an effort to control the number of regulatory entities, each division, agency, board, and commission (and in some cases, certain functions performed by a division, agency, board or commission) must terminate by a scheduled date referred to as the sunset date, which is set in statute. The sunset schedule is in section 24-34-104, C.R.S. A bill that creates a division, agency, board, or commission must include at least two sections:
1. An amendment to the appropriate subsection of section 24-34-104, C.R.S., that will schedule the termination of the regulatory entity; and
2. A section with a date that automatically repeals the statutory provisions that create the regulatory entity.
The General Assembly may pass a bill in a subsequent legislative session that extends the termination date or shortens the regulatory entity's existence. By October 15 of the year before the automatic repeal date for the regulatory entity, the Department of Regulatory Agencies will prepare a sunset report and submit it to the General Assembly.

What is a sunset report?

No later than October 15 of the year before the scheduled termination date of a regulatory entity, the Department of Regulatory Agencies must submit a report to the General Assembly that analyzes and evaluates the performance of the regulatory entity. This report is referred to as a sunset report. The sunset report contains the Department of Regulatory Agencies' recommendations about whether the regulatory entity should continue as it is, change, or terminate.

The OLLS staff drafts legislation before the next legislative session based on the recommendations in the sunset report. The draft legislation is submitted to the appropriate legislative committee of reference for consideration. If the General Assembly does not enact legislation that extends the scheduled termination date of the regulatory entity, it will terminate. The entity continues to exist for one year after the scheduled repeal date to wind up its affairs.

What is an accountability clause?

An accountability clause is a nonstatutory provision included in a bill, that requires the legislative service agencies (the OLLS, Legislative Council staff, and Joint Budget Committee staff) to review the implementation of the bill either two or five years after its enactment. The review is based on the information in the legislative declaration of the bill outlining what the General Assembly intended to achieve through the bill. A bill with an accountability clause also includes an appropriation clause to account for the estimated costs of conducting the post-enactment review. An accountability clause and the related legislative declaration are included in a bill only when requested by a legislator.

Will the bill drafter tell me if there is a question about the constitutionality of my bill?

Your bill drafter will consider whether the intent or effect of your bill might violate the U.S. or Colorado constitution and will bring up any constitutional issues that might arise with the passage of your bill. Regardless of whether your bill has potential constitutional issues, you make the final decision whether to introduce the bill.

The bill drafters in the OLLS are attorneys and as such are subject to the Colorado Rules of Professional Conduct. Under those rules, conversations between you and the attorney bill drafter are protected by a confidentiality requirement, and the attorney may not share the substance of your conversations with anyone outside the OLLS without your permission. Even if a bill drafter raises concerns about the constitutionality of your bill, the drafter will not raise those issues with anyone else. But if another member asks the drafter whether your bill has any constitutional issues, the drafter will discuss the issue of constitutionality with that member without disclosing anything about his or her conversations with you.

What is the process for requesting an Attorney General opinion on the constitutionality of a bill?

A request for a legal opinion from the Attorney General must come from House or Senate leadership. Let the Speaker of the House or the President of the Senate know if you would like to request an opinion from the Attorney General. The OLLS can help you prepare the documents required to be submitted with the request.

What does the power of referendum under the Colorado Constitution mean?

The power of the referendum is reserved to the people in section 1 (3) of article V of the Colorado Constitution. There are two types of referendum:
• The people may order a referendum by filing a petition against an act, or item, section, or part of an act, passed by the General Assembly and submitting this legislation to a vote of the people. This is called a rescission referendum. A referendum petition with the Secretary of State with enough signatures to place the bill or any portion of it on the ballot. If this occurs, the act or portion of the act will not take effect until it is approved by the electorate. If the voters do not approve the act or portion of the act at the election, the act will not take effect.
• The General Assembly refers an act to the voters by including the following referendum clause in the act:
Refer to people under referendum. At the election held on November (insert date & year), the secretary of state shall submit this act by its ballot title to the registered electors of the state for their approval or rejection. Each elector voting at the election may cast a vote either "Yes/For" or "No/Against" on the following ballot title: "Shall [insert language here]?" Except as otherwise provided in section 1-40-123, Colorado Revised Statutes, if a majority of the electors voting on the ballot title vote "Yes/For", then the act will become part of the Colorado Revised Statutes.

This type of act is called a referred measure. The act will not take effect unless the voters approve the act at a general election. If approved, the act takes effect on the date on which the Governor officially declares the vote by proclamation, unless the act includes a later specified effective date.

The power of the referendum does not extend to laws that are necessary for the immediate preservation of the public peace, health, or safety or to appropriations for the support and maintenance of the departments of state and state institutions. If a bill is passed with a safety clause, which states that the bill is necessary for the immediate preservation of the public peace, health, or safety, a citizen cannot file a petition seeking a referendum vote with the Secretary of State.

Can the General Assembly refer any bill to the voters?

Yes. The General Assembly may include a referendum clause in a bill, rather than a safety clause, so that the bill is referred to the voters for approval.

When the General Assembly refers a bill to the voters, is it also sent to the Governor?

According to the initiative and referendum provision found in Section 1 (4) of Article V of the Colorado Constitution, "[t]he veto power of the governor shall not extend to measures initiated by or referred to the people." So bills that the General Assembly refers to the people are not sent to the Governor.

What is the difference between a referred bill and a bill with a referred ballot question?

There are several differences between these types of bills:
• A referred bill is put to a vote of the people by the General Assembly in its entirety. A referred bill does not take effect unless approved by the voters.
• A bill with a referred ballot question is passed by the General Assembly and signed by the Governor (or allowed to become law by the Governor). The bill directs the Secretary of State to place a question concerning a state matter on the ballot, without reference to the rest of the bill. This is because the statutory provisions in the bill, other than those that are the subject of the question, are already law and are not referred to the voters. If the voters do not approve the question, the authority that was subject to approval of the question cannot be exercised. The most recent example of legislation containing a referred ballot question is section 39-28.8-401, C.R.S., which concerns the retail marijuana sales and excise tax.

Is there a limit on the number of bills or ballot questions that can be referred to the voters at an election?

No.

Is there a limit on the number of amendments to the Colorado Constitution that the General Assembly can submit to the voters?

Under section 2 of article XIX of the Colorado Constitution, each General Assembly can submit to the voters amendments to only six articles of the Constitution. The General Assembly may submit more than six separate measures to amend the Colorado Constitution within the two-year election cycle, but the cumulative impact of all the measures cannot affect more than six articles of the Colorado Constitution.

At what election can a bill, an amendment to the Colorado Constitution, or a ballot question be referred to the voters?

Under section 2(1) of Article XIX of the Colorado constitution, referred measures and amendments to the Colorado Constitution are voted on at the next biennial regular election (even-numbered years). However, a ballot question, constitutional amendment, non-recall petition, or referred measure that involves a state matter under section 20 of article X of the Colorado Constitution (TABOR) can be voted on in odd-numbered years as well.

TABOR issues include:
• Approval of a new tax, a tax rate increase, a valuation for assessment ratio increase for a property class, an extension of an expiring tax, or a tax policy change directly causing a net tax revenue gain;
• Approval of the creation of a multiple-fiscal year direct or indirect state debt or other financial obligation without adequate present cash reserves pledged irrevocably and held for payments in all future fiscal years;
• Approval of emergency taxes;
• Approval of revenue changes;
• Approval of a delay in voting on ballot issues; and
• Approval of the weakening of a state limit on revenue, spending, and debt.

What happens if the voters do not approve a referred bill or a referred ballot question?

A referred bill does not become law if it is not approved by voters. However, if the voters do not approve a referred ballot question, the statutory provisions contained in the bill are still law but the statutory authority that is conditional on approval of the referred ballot question cannot be exercised.

Do conflicting bills, constitutional amendments, or ballot questions get referred to the voters? What happens if the conflicting bills, constitutional amendments, or ballot questions both pass?

Conflicting bills, constitutional amendments, or ballot questions can be referred to the voters. If the voters adopt conflicting provisions, the provisions will be harmonized and both be given effect to the extent possible. If harmonization is not possible, the provision that receives the greatest number of affirmative votes will become law.