By D. Dowd Muska
The 2023 legislative session ended nearly a month ago, but Colorado’s advocates for affordable housing are still smarting over a bitter defeat.
SB 213, the governor claimed, would provide “more housing options for every Colorado budget and every community, [and] drive down costs that are pricing Coloradans out of our homes and out of our neighborhoods.” Boulder Mayor Aaron Brockett, the Southwest Energy Efficiency Project, Colorado Education Association, and Sierra Club were among the bill’s many supporters.
Leading the opposition to SB 213 was neither a gutsy grassroots crusade, nor a billionaire political player. It was government itself — specifically, towns, cities, and counties. The executive director of the Colorado Municipal League called the legislation “breathtaking overreach”. A coalition of nearly 30 mayors from metro Denver announced its resistance. Pitkin County sent its manager to the capitol to express commissioners’ hostility. Lone Tree, a small city in Douglas County, thundered that the bill would silence “the voices of our residents,” and disregard “prior decisions made by the voters, by taking away the right to be heard at public hearings on zoning matters.”
Who paid for all that pressure?
You did.
Local and state governments employ three tools to affect the policymaking process. First, in-house personnel and resources — e.g., officials testify during hearings, conduct press conferences, issue media releases, write op-eds, and post on Facebook and Twitter. Second, even the smallest of government entities often find that hiring a professional influencer, or an entire lobbying firm, can yield major legislative “wins,” such as the securing of special appropriations. Finally, “membership” organizations tap tax revenue to “speak” for cities, counties, government educators and administrators, law-enforcement professionals, etc.
Whatever form it takes, taxpayer-financed lobbying is wrong, because it makes citizens fund “messaging” they may oppose. As the U.S. Supreme Court ruled, in a 2018 decision, when government compels speech, “individuals are coerced into betraying their convictions,” and forcing “free and independent individuals to endorse ideas they find objectionable is always demeaning.”
The Southwest Public Policy Institute recently published a paper on intragovernmental advocacy in the eight states of the American Southwest. We found that Colorado is no different than Oklahoma or New Mexico or California: taxpayer-funded lobbying is commonplace. Battles over school choice, corporate welfare, criminal justice, environmental regulations, and many other matters of importance to everyday life are heavily swayed by public-sector entities.
It’s true that the movement to stop this misuse of tax dollars is associated with the right. But our research reveals that the left should be concerned as well. As the smackdown over SB 213 demonstrates, government is capable of deploying its considerable resources against the “progressive” agenda.
What can be done? Texas offers a national model for prohibiting taxpayer-funded lobbying. There, statutes forbid “a state agency” from using “appropriated money” to “employ, as a regular full-time or part-time or contract employee, a person who is required … to register as a lobbyist.” In addition, “membership dues to an organization that pays part or all of the salary of a person who is required… to register as a lobbyist” are forbidden. And state agencies cannot “attempt to influence the passage or defeat of a legislative measure,” although use of “resources to provide public information or to provide information responsive to a request” is, understandably, permissible. Sadly, efforts to apply the law to local governments have been unsuccessful. (The campaign is opposed, unsurprisingly, by the County and District Clerks’ Association of Texas, Texas Association of School Administrators, Texas Association of County Auditors, and Texas Municipal League.)
In Colorado and throughout the American Southwest, it’s time for good-government activists worried about the subversion of democracy via “dark money” to join conservatives and libertarians to put an end to taxpayer-funded lobbying.
No matter what the issue, no matter what the bill, no matter what the ordinance, no matter what the regulation, intergovernmental advocacy is compelled speech, and as such, a violation of the First Amendment.
D. Dowd Muska is vice president of research at the Southwest Public Policy Institute, an organization dedicated to improving the quality of life in the American Southwest by formulating, promoting, and defending sound public policy.