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Energy Giants Choose Nuclear Option in Election’s Biggest Fight Over Fossil Fuel

Co-published by Westword
Fallout from Colorado’s Amendment 74 could land on all states’ efforts to curb pollution and climate change.

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Photo: Getty Images

Energy industry spending in a 10-year battle over fracking in backyards could end up putting Colorado property laws on a feudal level.


 

Co-published by Westword

Mike Foote is prosecuting another case tonight, just as he has for more than a decade. The square-jawed Indiana transplant indicted petty thieves, violent criminals and Ponzi schemers in his old day job as a deputy district attorney in Boulder, Colorado — but here at a public library in Longmont, 30 miles north of Denver, he is rhetorically indicting the perpetrator he’s been most obsessed with: the fossil fuel industry.

At this town meeting about the upcoming election, Foote is charging the industry with attempted murder — of the entire state’s economy.

“We have five oil and gas companies that want to amend our Constitution, our controlling document,” says Foote, a dark-haired 45-year-old father of two who has been one of the legislature’s most outspoken critics of oil and gas companies. “They’re putting a lot of money into it, millions and millions of dollars. They may win, and they may buy a portion of our constitution that controls everything that we do.”


Amendment 74 does not appear to be part of a power-grab by Texas energy barons. Instead, it taps into fever-dream fears about Gestapo government.


In his gray suit, blue shirt, no tie — Foote cuts a profile that is way more office park dad than radical anti-capitalist, which may boost his seemingly counterintuitive argument. After all, this is an area of Colorado still narrowly divided between the parties, and Foote is passionately railing against Amendment 74, which would expand property owners’ power to claim “just compensation” from government. The initiative’s curt 11 words can, at first glance, appear to be just a simple “good government measure that makes sense for all of us,” as Denver Post editor-turned-fossil fuel industry spokesman Dan Haley recently insisted.

Foote concedes that the ballot measure’s folksy artifice of frontier fairness seems compelling. On its face, it does not appear to be part of the now-familiar power-grab by Texas energy barons trying to install noxious fracking rigs next to idyllic neighborhoods in Colorado’s fast-growing suburbs. Instead, the amendment taps into fever-dream fears about Gestapo government.

“The commercials typically show some salt-of-the-earth guy with a baseball cap that’s driving around a tractor on his farm. Supposedly he’s saying, ‘Well if government takes your property, then they should pay you,’ which sounds good, right?” Foote says as a few heads nod and an affirmative murmur ripples through the white-haired crowd.

But, then, eminent domain folklore isn’t necessarily reality — and as its opponents tell it, Amendment 74 is not some good old grassroots common sense spontaneously crafted by hardscrabble ranchers. Foote explains that strong takings laws are already on the books, and that this constitutional initiative was meticulously engineered by a team of high-powered Denver attorneys and political operatives to achieve only one objective: shielding oil and gas corporations from all public interest regulations that may emerge as population growth and energy development collide in the Rocky Mountain West.

Erika Deakin: Forty-five backyard oil wells and counting. (Photo: David Sirota)

For its part, the measure’s sponsor originally admitted that the amendment is indeed meant to protect drillers’ access to oil and gas reserves. And yet despite that early moment of candor, the industry-funded issue committee pushing the measure has since then constantly insisted that it is simply a general-interest initiative needed to thwart an impending assault on Colorado’s way of life.

“Amendment 74 protects all private property owners, including those who grow and raise our food and have invested a lifetime of financial and sweat equity into their property,” says the website of Protect Colorado, which gets almost all of its funding from oil and gas corporations. “When a government action takes or devalues property, it is only fair to make sure private property owners are compensated for their losses. Denying family farmers, homeowners and other property owners the right to decide how to use their own land runs contrary to Colorado values.”

As a concept, Amendment 74 is not new — it resurrects the libertarian ballot-initiative fad from the mid-2000s, when seven Western states considered similar property rights proposals amid the furor over a controversial Supreme Court case strengthening eminent domain powers. This time around, if the amendment passes November 6, it will radically alter the law to give oil and gas companies more power to sue state and local governments for property losses if those governments restrict or regulate fossil fuel exploration for any reason: health, safety, climate change — anything.


Colorado’s amendment is a radical model that could block all future state efforts to reduce fossil fuel extraction, carbon pollution, vehicle emissions and climate change.


In the upcoming election, voters in Arizona, Nevada and Washington State will consider environmental ballot measures that could reduce fossil fuel industry profits at the very moment key parts of the industry are already facing financial turbulence. As scientists’ climate change warnings become increasingly grave, the industry will likely confront even more such initiatives to wean America off oil and gas. But if Amendment 74 is successful in a swing state like Colorado, oil and gas companies will have birthed a new template that could be replicated in other locales. It is a model that could block all future state efforts to reduce fossil fuel extraction, carbon pollution, vehicle emissions and climate change.

“Any kind of decision a local government makes could be subject to a lawsuit,” Foote says, looking around the gray-carpeted room and referring to a PowerPoint slide showing the text of the amendment. “If the lawsuit is successful, then guess who’s paying? Taxpayers.”


A similar Oregon amendment opened a Pandora’s box of litigation, until much of it was repealed.


In fact, the Colorado legislature’s nonpartisan analysts concluded that if Amendment 74 is approved by voters, taxpayer expenditures for compensation to plaintiffs would “be significant for all branches of state government.” In Oregon, when timber companies and developers passed a similar measure in 2004, it opened a Pandora’s box of litigation, suddenly prompting thousands of claims demanding billions of dollars worth of taxpayer compensation for alleged losses from the state’s land-use laws. The situation became so dire that voters repealed much of the amendment only three years later.

And yet 11 years after the Oregon measure was aborted, it is being revived in Colorado by fossil fuel money — and in a broader, more purified form than any property rights initiative in American history.

Critics of Colorado’s Amendment 74 say if it passes, it could mean anything from chemical industry lawsuits demanding payment for losses from clean water laws, to factory farms claiming damages from anti-pollution statutes, to strip clubs and pot shops seeking remuneration for zoning regulations that restrict their locations. Legal experts have even warned oil and gas companies that Amendment 74 could actually backfire on the fossil fuel industry itself — they say it could spur homeowners to file lawsuits claiming nearby fracking sites reduce their property value, and those suits could then prompt regulators to simply freeze all new permits for energy development.

The hypotheticals are infinite and portend a destabilizing miasma of legal turmoil, which is why major newspaper editorial boards, public officials from both parties, business groups, real estate interests and environmental organizations have set aside age-old differences to officially oppose the measure. However, the official statements of opposition have not been backed up by an overpowering expenditure of political capital or resources to stop the measure — and now the highest-profile leader in national progressive politics is sounding an alarm.

“Colorado Amendment 74, pushed by the fossil fuel industry, seems to be one of the most dangerous propositions in the country,” tweeted U.S. Sen. Bernie Sanders, days after visiting Colorado on a campaign swing. “It could open the floodgates for oil, gas and other corporate interests to bankrupt the state. This extremely dangerous amendment must be defeated.”


Amendment 74 is an economic nuclear weapon that can automatically detonate and bankrupt the state if any public agency tries to even modestly restrict fossil fuel production.


The fossil fuel industry, however, isn’t budging. Despite pleas from power players across the ideological spectrum, major petroleum corporations have dumped more than $8 million into the main group pushing the initiative.

Why? Because for oil and gas CEOs, Amendment 74 is no hypothetical. It is first and foremost designed to be the industry’s dead-hand insurance policy — a constitutionally authorized economic nuclear weapon that can automatically detonate and bankrupt the state if any public agency tries to even modestly restrict fossil fuel production.

“These measures have essentially blocked the enactment of any significant new community protections and severely undermined the protections that pre-dated the measures,” Georgetown University researchers concluded in a 2008 report that seemed to predict the oil and gas industry’s current attempt to use the initiatives to squelch fossil fuel regulations. “While the property rights agenda is generally advertised as being for and on behalf of the ‘little guy,’ the primary beneficiaries of the property rights agenda have been relatively well-to-do special interests.”


Proposition 112, which would require new drilling operations to be set further away from occupied buildings or water sources, is the threat that prompted Big Oil and Gas’ Manhattan Project.


The Amendment 74 apocalypse is not some distant prospect: It could be triggered if environmental activists are successful in circumventing Colorado’s state legislature and passing their own separate ballot measure this year.

“Do We Have Any Standing Whatsoever?”

To understand Amendment 74’s underlying objective, you must first understand Proposition 112, which would require new drilling operations to be set further away from occupied buildings or water sources. If Amendment 74 is the oil and gas sector’s nuclear weapon, then Proposition 112, which is on the same ballot, is the threat that prompted the industry’s Manhattan Project.

“If 112 passes, and Amendment 74 passes, it makes 112 meaningless,” says Foote, as the Longmont meeting winds down. “That’s the point.”


Prop. 112 is a brawl over who gets to make decisions: residents in their own towns, or a few politicians bankrolled by energy corporations.


If you just watch the election-season commercials, you may think the battle over the setback measure is just another replay of the age-old conflict between environmental activists and powerful industrial interests. It certainly is that — but it is also something bigger. Beneath the billboards and direct mail pieces and television ads, Prop. 112 is actually a brawl over who gets to make decisions: residents in their own cities and towns across Colorado, or a handful of politicians in the capital, bankrolled by corporations intent on extracting every last bit of profit from the fossil fuel reserves underneath Front Range communities.

A northward journey on I-25 from Denver takes a visitor through the front lines of this power struggle that is unfolding in the Wattenberg Field, an oil- and gas-rich expanse stretching across 2,000 square miles of northeast Colorado.

Amid the blur of big box stores and grasshopper-like oil pumpjacks, you first hit Thornton, where oil and gas lobbyists convinced a court to invalidate the town’s pipeline rules, and then in trash-talking fashion, warned other cities that they’d be next if they tried anything similar. Just to the northwest is Broomfield — a patch of suburban sprawl where an oil and gas company is running scorched earth campaigns against local officials who are seeking to restrict new drilling sites. Beyond that is Lafayette, whose voter-approved drilling ban was struck down by a state court, and where environmental activists angrily shut down a recent city council meeting.


Proposition 112 is a blunt-force instrument. It does not seek small compromises or accept the oil-connected political establishment’s definition of what is “realistic” or “reasonable.”


Ultimately, you hit Weld County, home of the now-iconic Firestone — the bedroom community where two people were killed in 2017 by an explosion caused by a severed gas line from a nearby well. You’ll also find Greeley, where a major drilling site is planned right next to a school in a low-income neighborhood, and tiny, unincorporated Briggsdale, where an oil tank battery fire injured three workers in the last weeks before the election.

These are the battlefields of the “shale revolution,” where a dramatic increase in American fossil fuel production has been made possible by technological advances like horizontal drilling and hydraulic fracturing, commonly known as fracking.


Loveland woke up to letters informing residents of — not asking permission for — a project that will drill a dozen two-mile-long horizontal wells underneath its homes and schools.


Though oil and gas have been produced in Colorado for over a century, the last decade has seen a proliferation of drilling on the fast-growing Front Range in a state that — despite its cowboy reputation — is now one of the country’s most urban. Since 2000, as Colorado’s population has swelled by more than 1.3 million people, natural gas production has doubled and oil production has increased more than seven-fold — with much of that extraction taking place near major population centers.

Taken together, the state is experiencing an epic clash of two American Dreams: the young family’s dream of suburban homeownership and the frontier landman’s dream of fossil fuel gushers.

So far, the latter has been winning in Colorado. Here — unlike in Pennsylvania, another political swing state where recent battles over fracking have been fought — statutes and court rulings have stripped local communities of their authority to ban, zone, or in any way regulate the oil and gas operations that occur within their municipal borders. Efforts to enact so-called local control laws have been repeatedly thwarted by both Republicans in the state legislature and Democrats like Governor John Hickenlooper.


The full-court press against Prop. 112 has dominated local media for months and has employed an everything-but-the-kitchen-sink messaging strategy.


Modern oil and gas extraction is a complex, mechanized, heavy industrial process. It involves super-sized pad facilities that can house dozens of wells, with drilling and flowback operations that can last for months at time, afflicting surrounding areas with constant noise, odor, and traffic — to say nothing of the ever-present risk of spills, explosions, and other accidents. And under Colorado law, communities have virtually no authority to stop these facilities from popping up wherever a company can acquire land, obtain a state permit, and decide to start drilling.

The situation has sown a sense of powerlessness — and frustration with that lack of agency suffused an October city council meeting in Republican-leaning Loveland. The community of 76,000, located directly south of Ft. Collins, recently woke up to letters informing residents of — not asking permission for — a project that will drill a dozen two-mile-long horizontal wells underneath many of their homes and schools.

An overflow crowd packed into the council chambers to hear a presentation on the drilling proposal and share its concerns. Most were residents of the neighborhoods under which the planned drilling would take place — retirees anxious about how it would affect their health, parents worried about their young children. As city employees briefed council members on the plans, however, it became clear just how little control Loveland would be able to assert over the situation.

“Do we have any standing whatsoever, as far as this drilling process [goes]?” asked City Councilor Steve Olson.

“We are somewhat in the same boat as the rest of the folks in the audience tonight,” replied Brett Limbaugh, the city’s Development Services Director. “We are a mineral rights owner in this area. That’s why we received the notice.”


Amendment 74 proponents allege Prop. 112 will harm schools, punish teachers, hurt children, kill hundreds of thousands jobs, decimate property values, jack up utility rates and harm retirees.


Sam Bradley, a petroleum engineer for Magpie Operating, laid out the company’s plans for the initial 12 wells to be drilled underneath Loveland, and for an additional five well pads extending south into Larimer and Weld Counties, with as many as 60 wells to be drilled in total. Defending Magpie as a local, family-owned company, he took issue with a news article in which an affected resident described the situation as “un-American.”

“This is the opposite of that — this is a uniquely American situation,” said Bradley, prompting morbid laughter from the crowd.

Loveland residents who spoke during a public comment period mostly expressed fear and opposition to the drilling proposal, and many residents of the affected neighborhoods accused Magpie of failing to properly notify them of its plans. Several speakers fought back tears as they described the impacts the drilling could have on their lives.

“We don’t know the full health effects of fracking,” said Dr. Alison Cowan, a UCHealth physician and a resident of one of the impacted neighborhoods. “But the data that we do have suggest very strongly that we have grave reason to be concerned that this is happening under our homes, in our communities, to ourselves and to our children.”

Oil and gas officials have long scoffed at such concerns. In particular, they’ve faulted several studies by Dr. Lisa McKenzie, a researcher at the Colorado School of Public Health, whose findings have also been dismissed by the administration of Gov. John Hickenlooper, a former petroleum geologist who has been a staunch industry ally and major recipient of its campaign cash.


Complaints about headaches, nausea, respiratory issues and nosebleeds more than tripled in 2017, as Coloradans reported on the adverse effects of oil and gas operations.


“I go back to my reporter days on the Denver Post editorial page, and really looking at things with a critical eye,” said Dan Haley, president of the Colorado Oil & Gas Association, during a Colorado Public Television debate in September. “These studies are not what we should be basing our policy on.”

But McKenzie’s research is far from alone in its findings; there exists a vast catalog of scientific evidence suggesting that proximity to oil and gas extraction poses serious health and environmental risks. In a 2016 analysis published in the scientific journal PLOS One, researchers evaluated 685 peer-reviewed studies on the effects of fracking and found that 84 percent of them “contain findings that indicate public health hazards, elevated risks, or adverse health outcomes.” Sixty-nine percent of water quality studies and 87 percent of air quality studies found evidence of fracking-related pollutants or contamination.

Meanwhile, reports prepared by Hickenlooper’s health department, which are frequently touted by the industry, have been criticized for their lack of peer review. The most comprehensive state assessment to date — an analysis of thousands of air samples collected near oil and gas operations in 2016 — was originally scheduled for release this summer, but Hickenlooper’s administration delayed its release until next year after lawmakers called for the study to be peer-reviewed.

Though the study is complete, the state health department rejected a Capital & Main open records request to review it for this article.

What is certain are the first-hand experiences detailed in the public health complaints that pour in on a near-daily basis to the Colorado Oil & Gas Conservation Commission (COGCC), the state agency that oversees drilling. Overall, those complaints more than tripled in 2017, as Coloradans continued to report the adverse effects of the oil and gas operations encroaching on their communities: headaches, nausea, respiratory issues, nosebleeds, trouble sleeping and more.

“We started becoming aware of the oil and gas wells popping up less than quarter mile from our house. They were just right outside, [and] around the same time my children, my husband and myself began to get constantly sick,” young mother Karen Maciula said at a recent anti-fracking rally in Denver. When her family lived in Erie, she said their blood tests indicated elevated levels of the carcinogen benzene that studies have shown can be found near fracking sites.

“Our experience living with fracking was horrific,” she said. “People should not be forced to be guinea pigs.”

At the council meeting in Loveland, those same fears simmered beneath residents’ comments, which stretched on past 11pm. In the end, however, there was almost nothing the council could do.

“Does Loveland have any jurisdiction in the below-surface area?” Olson, the city councilor, asked.

“We don’t,” said Limbaugh. “The state is the authority on oil and gas applications.”

This scene has played out over and over again in communities along the Front Range in the last decade — and the script always seems to end the same way. Impacted residents file complaints, write their representatives, speak out at hearings and form community activist groups. They plead with Hickenlooper, with state lawmakers, with regulators, and with the courts, for tougher restrictions on the oil and gas operations laying siege to their communities. If they’re lucky, they notch a few peripheral wins, such as when they convinced regulators to slightly increase setback requirements and tighten some air pollution rules.

But on the biggest questions of health, safety, pollution and climate change, the result has almost always been the same: Residents get steamrolled by the fossil fuel industry and its allies in state government.

Indeed, even as grassroots anger intensifies, the pace of oil and gas development along the Front Range has accelerated over the last four years. Amid a spate of explosions and an increase in leaks — 619 reported incidents in 2017, according to state data — drillers are submitting record numbers of new permit applications to the COGCC. What’s more, the industry is increasingly seeking to drill and frack in ever more densely populated areas just outside Denver city limits, with hundreds of new wells proposed in urban municipalities like Commerce City and Aurora. And all of this is happening as the Republican state senators and the Democratic governor have worked together to block major safety proposals — indeed, even in the weeks after the deadly blast in Firestone, lawmakers voted down legislation that would merely let homeowners know if they are living near oil and gas infrastructure.

The history of American politics is the story of disenfranchisement fomenting backlashes — and Colorado in 2018 has become the latest iteration of that tale. Feeling trampled by an oil and gas industry that converts profits into massive campaign donations, a lobbying army and lavish influence-peddling conferences, local activists decided they’d had enough. They stopped waiting for political leaders to do something, and started collecting petition signatures to circumvent the legislature and campaign for their own no-holds-barred ballot measure.

Proposition 112 is a decidedly blunt-force instrument. It does not seek to broker a small compromise, negotiate nuances or accept the oil-connected political establishment’s definition of what is “realistic” or “reasonable.” Instead, it is big, brazen and bold: It would require new oil and gas wells to be almost a half mile away from occupied buildings and other designated areas like water sources. That’s a considerable increase over current laws, which mandate setback distances of 500 feet from single-family homes and 1,000 feet from high-occupancy buildings.

“With nine out of 11 bills killed in our legislature and hundreds of heartbreaking testimonies given to the COGCC with no action, it’s time our citizens are heard with this ballot measure,” said Heidi Henkel, founder of Broomfield Moms Active Community, when activists submitted petition signatures. “The state has failed to protect us, so we’ve taken it into our own hands.”

In a way, the initiative flips the script on the oil and gas industry and its political allies: After years of well-heeled fossil fuel attorneys marching into court and citing state law to eviscerate local fracking restrictions, the initiative aims to use that same state-level authority to impose what would be the strictest setbacks law in the country.

In years past, Colorado environmental groups had failed to successfully force a statewide vote on fracking. This time around, activists finally got the clear, easy-to-understand ballot showdown over fracking and drilling that they had long sought.

But in doing so, they also prompted one of the wealthiest and most politically powerful industries in the world to construct its nuclear weapon.

“You Need To Stand Up For Your Rights”

The effort by Colorado Rising, a newly-formed activist group, to place a setbacks measure on the 2018 ballot was by no means a sure thing. This year’s succeeded where similar previous attempts fell short, thanks in large part to volunteers like the ones who spent a warm Friday afternoon in mid-October knocking on doors in Greeley to turn out the vote for Proposition 112.

“This is kind of the belly of the beast,” says Carol St. Jean, looking over her assigned list of houses with fellow canvasser Cheryl Beseler. Located on the northern edge of the Wattenberg Field, Greeley is home to many of the smaller operators, contractors and rig workers who comprise the fossil fuel industry’s labor force. Yard signs lining streets read “I Am Colorado Oil & Gas” and “Jobs Matter – Vote No on 112.”

St. Jean, a middle-aged academic counselor, estimated that there are between 40 and 50 oil and gas wells within a half-mile of her property. Like so many others, she has familiar stories about the impact that drilling, pipeline construction, constant truck traffic and other industry operations have had on her and her neighbors.

“When I moved to Greeley, that’s the first time I ever got asthma,” says St. Jean, who lives on a small farm east of town and works at the University of Northern Colorado. “It wasn’t that bad until they started fracking — when it started out, I had to sometimes use an emergency inhaler. Now I carry it with me everywhere.”

As the sun began to set over the Rockies, the two canvassers criss-crossed through a sleepy neighborhood in central Greeley, knocking on about 50 doors to spread the word about Prop. 112 — and even in the heart of fracking country, in a county that President Donald Trump won by over 20 points, they mostly encountered friendly curiosity and quiet support. Only one resident, a woman who icily told the canvassers that her husband worked in the oil fields, was anything less than cordial. Several said they were undecided, but leaning yes.

Such responses are why the industry and its allies have fought so hard to keep tougher fracking restrictions off the ballot: In short, such measures seem to be inherently popular.

Before a pair of anti-fracking ballot initiatives were withdrawn in a controversial deal brokered by Hickenlooper in 2014, polling showed both leading by huge margins. Last month, Axios reported that an unreleased poll commissioned by the industry showed that Prop. 112 was “likely to pass with around 60 percent support.”

The industry’s Plan A, of course, is to overcome the measure’s appeal by spending staggering, unprecedented sums to defeat it — $38 million, at last count, with the vast majority of it from fossil-fuel giants like Texas-based Anadarko Petroleum and Noble Energy. That’s over 40 times the figure raised by Colorado Rising in support of the initiative. (For a full breakdown of the oil and gas industry’s spending on the 2018 election, see sidebar.)

The full-court press against Prop. 112 has dominated local media for months. In direct mail, television ads, newspaper op-eds, public debates and social-media posts, the industry and its allies have employed an everything-but-the-kitchen-sink messaging strategy.

As COGA president Dan Haley insists natural gas is “cleaning our air and improving health,” Amendment 74 proponents allege the measure will harm schools, punish teachers, hurt children, kill hundreds of thousands jobs, decimate property values, jack up utility rates, harm retirees and devastate local government budgets. Prop. 112 opponents have also cited COGCC data to insist the measure would amount to a de facto ban on all new extraction.

Those assertions have been undermined by both academics and the oil and gas industry itself.

Earlier this month, an analysis by a Colorado School of Mines researcher concluded that the increased setbacks would still leave around 42 percent of non-federal sub-surface area accessible by modern drilling technology. Now, a week before the election, a leaked fossil fuel industry report obtained by Colorado Rising appears to further contradict claims by opponents of Prop. 112. The analysis by RS Energy Group found that with existing fracking technology, a full 61 percent of the Denver-Julesburg Basin — and 43 percent of the Wattenberg Field — “remains accessible if Proposition 112 is affirmed.” (The analysis by RS Energy Group that was released by Colorado Rising said it is “intended only for individuals in the anadarko.com organization” — a reference to Anadarko Petroleum, one of the major funders of the campaign against 112. However, RS Energy Group is an independent firm that said the report was “intended for all of its clients” and not specifically or exclusively for Anadarko).

Nonetheless, the industry’s criticism has succeeded in convincing almost all of Colorado’s political establishment — Republican and Democrat — to line up against the measure, including both Republican gubernatorial candidate Walker Stapleton and Democratic gubernatorial candidate Jared Polis. But even with all the money and power aligned against Prop. 112’s grassroots volunteer army, there is no way to know if it will be enough. And so, long before any mailers were printed or any TV commercials aired, supporters of the oil and gas industry quietly hatched their Plan B: Amendment 74.

“The oil and gas folks had a knife fight on their hands with Proposition 112, and so they decided to bring a nuclear weapon in as a backup, and now the entire state is under threat,” says Ian Silverii, executive director of the progressive group ProgressNow Colorado, which opposes Amendment 74.

That alleged threat revolves around private property law. Colorado’s constitution currently stipulates that “private property shall not be taken or damaged, for public or private use, without just compensation.” If passed next week, Amendment 74 would insert into this sentence a seemingly innocuous 11 words, declaring that private property cannot be taken, damaged, “or reduced in fair market value by government law or regulation” without taxpayers forking over that compensation.

Earlier this year, Republican state lawmakers tried and were unsuccessful in their efforts to pass legislation to create a narrower version of Amendment 74 that would have manufactured a special takings protection just for oil and gas. Amendment 74 proponents now cast their far broader measure as a simple matter of equity, not tailored to any one specific issue or industry. In pro-74 TV ads, farmers and ranchers champion the amendment in language that is equal parts folksy and vague.

“Government should not get a free pass to destroy the value of a family farm — it’s only fair,” says one ad, featuring Republican Mesa County Commissioner John Justman striding through green cropland as a John Deere tractor rolls by in the background.

“You need to stand up for your rights,” says another ad. “Vote yes on 74 — it’s only fair.”

None of the ads say anything about oil and gas extraction. That must seem odd to Chad Vorthmann, executive vice president of the Colorado Farm Bureau and one of the amendment’s sponsors. After all, he told the agricultural newspaper The Fence Post that “these measures are about protecting Colorado’s farmers and ranchers from extremist attempts to enforce random setback requirements for oil and natural gas development.”

That mission is made particularly clear by the Committee for Colorado’s Shared Heritage, the issue committee behind the pro-74 ads. According to the group’s campaign finance filings, 99.8 percent of the organization’s money — more than $8 million in both cash and in-kind contributions — has come from Protect Colorado, the anti-Prop. 112 committee funded almost exclusively by the oil and gas industry. While Haley told Denver’s ABC affiliate this month that COGA has “not taken a position” on Amendment 74, Protect Colorado’s big funders include more than a dozen COGA member companies, including Anadarko, Noble and Extraction — each of which are represented on COGA’s board.

Vorthmann and other Colorado Farm Bureau officials did not respond to repeated requests for comment from Capital & Main.

Haley has lately asserted that unto itself, Proposition 112 “would probably open the state up to some legal challenges should it pass.” But if that’s the case, why would the industry then need Amendment 74? Because according to University of Denver associate law professor Kevin Lynch, existing takings laws have never awarded the fossil fuel industry damages for strict environmental, health and safety laws — even in places like gas-rich New York, where fracking was banned.

Amendment 74 would change that by empowering mineral rights owners to sue the state for untold billions in compensation if any new regulation like Proposition 112 restricts their ability to reap royalties from those resources.

That sounds like a great idea to Bob and Cristy Koeneke of Arvada, whose families have owned mineral rights in Adams and Garfield counties for generations. At a rally against Prop. 112 on the steps of the state Capitol in October, they rejected the notion that any new drilling regulations were necessary, and strongly endorsed Amendment 74.

“If you own a home, if you own any property, is it okay with you if the government comes in and steals it from you?” asked Bob.

Cristy, who sits on the board of the Colorado Alliance of Mineral and Royalty Owners (CAMRO), said her family’s mineral rights date back to the 1880s, when her great-grandfather was one of the early settlers of the Western Slope’s Piceance Basin.

“They were looking for gold and silver, they had no idea about oil and gas,” she said, noting that advances in shale drilling technology have been a boon to mineral owners like her. “After five generations, we’re finally being able to develop those resources.”

An analysis by CAMRO says that in the Wattenberg Field alone, those undeveloped resources may be worth up to $179 billion. It’s impossible to know exactly how much that value would be diminished by Prop. 112’s increased setbacks. But if both Amendment 74 and Prop. 112 pass, the mere threat of billion-dollar claims could be enough to convince the state legislature to immediately overturn the will of the voters and repeal Prop. 112. That course of action has already been endorsed by Republican Walker Stapleton, whose gubernatorial campaign is being supported by a super PAC that has received hundreds of thousands of dollars in campaign cash from oil and gas donors.

“These Eleven Words Were Deliberately Chosen”

Despite its origins as an insurance policy against Proposition 112, the full scope of Amendment 74’s implications extends far beyond oil and gas regulation and the interests of one specific industry. Because of how broadly it is written, experts say, the amendment could ignite an explosion of costly litigation across myriad economic sectors and targeting every level of government in Colorado.

“These 11 words were deliberately chosen,” says veteran Colorado political attorney Mark Grueskin. “There’s nothing in 74 that requires that it be a future law. They crafted it so that it would apply no matter when the [law] was adopted.”

“They could have said, ‘By regulation adopted by an agency on or after January 1, 2019,’” he adds. “They didn’t. They used a passive phrase in order to provide license to go back and say, ‘We’re immune from any sort of regulatory act that reduces our property value, unless you want to pay us.’”

In an October op-ed for Colorado Politics — which is owned by oil magnate Phil Anschutz — Centennial Institute scholar Kelly Sloan berated “fanatical environmentalists and other left-wingers” for opposing the measure, and argued that Amendment 74 would merely fix an old court ruling from La Plata County that he said limited redress rights unless the entire value of a property is fully destroyed.

“At issue is the gradation of taking – whether the government ought to compensate a property owner when an imposed regulation reduces a certain amount of a property’s real value,” wrote Sloan, whose op-ed did not disclose that he is a registered lobbyist for an oil and gas exploration company and a landowners’ group.

That legalistic argument has not placated Amendment 74 opponents, who say it would be the most extreme private-property rights law in the country.

“It’s the single worst measure I’ve ever seen in 40 years, and we’ve had some stinkers,” says Sam Mamet, executive director of the Colorado Municipal League. “It’s also one of the singularly most disingenuous, dishonest measures I’ve ever seen. There are people behind the black curtain that won’t come out and say what’s going on here.”

Among those behind that curtain are attorneys from powerhouse law firm Brownstein Hyatt Farber Schreck, which helped shepherd the measure through the ballot process, and preserved a short description of the measure that Mamet and others say is deceptive. Brownstein’s Jason Dunn — who last week was sworn in as President Trump’s U.S. Attorney for Colorado — successfully defended that language before the Colorado Supreme Court, which allowed the amendment to be placed on the ballot mentioning only “just compensation” for property owners. The language on voters’ ballots does not make any reference to the wide array of claims that one top real estate expert said could be made against state or local governments, if Amendment 74 passes.

“Amendment 74 does not exempt fire or building codes, or other public safety regulations,” wrote Colorado land-use attorney Tom Ragonetti in a memo sent to business leaders. “Because fire and building codes (as well as storm drainage regulations and utility requirements) necessarily reduce properties’ fair market value, local governments will face incalculable liability for these necessary public safety regulations.”

The memo also declared that “if a local government rezoned property in order to attract a major employer, neighbors could file a claim that their properties were devalued,” which would create a “serious disincentive to rezone property for economic development purposes.”

When it comes to climate change, the consequences could be just as dire. Not only could Amendment 74 effectively create a guarantee of unregulated extraction across the entire state, it could also financially punish taxpayers if Colorado officials continue efforts to reduce emissions.

“Car manufacturers could be entitled to the cost of required emissions equipment,” Ragonetti’s memo said.

What’s more, Amendment 74 could result in significant additional taxpayer costs if it ends up lowering state and municipal credit ratings, which help determine interest rates when governments borrow money. Those ratings can decline, and interest rates can rise, when governments are facing general uncertainty about their budgets, as well as specific new spending mandates that threaten their ability to pay back debts.

Amendment 74 could be a double whammy of uncertainty and constitutionally required spending on compensation to property owners. Recent Colorado bond offerings reviewed by Capital & Main are already warning investors and credit agencies that the amendment would create “significant liabilities to the state,” thus potentially making it more difficult for Colorado governments to pay their bills.

“Having an uncertainty about what your liabilities are going to be, but knowing they could be massive — that could very well start impacting our credit rating from the day this thing passes,” says State Rep. Matt Gray, a Broomfield Democrat who is a bond attorney for local governments.

Gray adds that once the amendment is on the books, “People [will sue] the state for its policies…and therefore [governments] are not going to be as creditworthy because they’re going to have more expenses with no new revenue sources.”

The Oregon Experiment: “It Was a Disaster”

Colorado state and local officials were only beginning to panic about all the hypothetical downsides of Amendment 74 when in early autumn its proponents made their final decision to place the measure on the ballot. To try to assuage policymakers’ fears, the measure’s most prominent booster, the Colorado Farm Bureau, sent a memo to municipal leaders across the state arguing that the hypothetical doomsday scenarios are being overblown.

“Amendment 74 will not affect a municipality’s home rule authority to enact local regulations to protect its citizens,” said the memo authored by Brownstein Farber oil and gas attorney Mark Matthews. “If Amendment 74 becomes law, Colorado courts would interpret these other requirements strictly to limit the number of successful takings claims.”

Those assertions and legal theories seem reassuring, except for one little detail: They are undermined by the real-world experience of Oregon, a state that voted similar private property language into its legal code.

“It was a disaster,” says former Oregon Gov. Ted Kulongoski, the Democrat who was in office when Oregon’s Measure 37 passed in 2004. “The only way the local governments can pay for it is they have to tax the people. It’s going to end up costing more money and destroy the livability of Colorado.”

Whereas Colorado’s oil and gas industry is using Amendment 74 to try to preemptively block future fracking regulations, in Oregon, Measure 37 was backed by timber interests and commercial developers seeking to dismantle the state’s longstanding land-use laws. In Colorado, the Farm Bureau is the public face of the measure, but in Oregon, the Farm Bureau backed the effort to rescind parts of the property rights initiative once it was on the books.

Despite those key differences, the two measures and the two campaigns to pass them are nearly identical — and their practical effects could be, too.

“Big moneyed special interests are running the same deceptive campaign that we faced in Oregon, and it will create the same huge problems,” says Ron Ruggiero, who was a labor organizer in Oregon when Measure 37 passed, and who is now president of the Colorado chapter of the Service Employees International Union. “They are once again trying to rig the system against regular working people and make it sound like some great populist idea for the little guy.”

Much like Amendment 74, Measure 37 required governments to pay residents when “regulations reduce owners’ property value.” The idea wasn’t exactly new — a similar concept had already been baked into America’s trade deals that give foreign corporations standing to sue for damages if state or local laws reduce those corporations’ profits.

Also like today’s Colorado campaign, the Oregon effort presented itself as a grassroots undertaking. It was launched in the lead-up to the now-famous Kelo case, in which the Supreme Court strengthened eminent domain powers. Measure 37’s pitchforks-and-torches tenor was amplified in ads resembling the ones now airing in Colorado — the ones that never mention oil and gas and that incessantly depict commonfolk getting screwed by Big Government.

Likewise, TV spots promoting Measure 37 did not focus on how the proposed law would enrich powerful logging interests or developers — they spotlighted regular workaday Oregonians complaining about how environmental and zoning laws were impinging on their daily lives.

One ad featured a young woman who said she was fined thousands of dollars for trimming bushes in her backyard. The most famous spots revolved around 90-year-old Dorothy English lamenting how state laws were preventing her from subdividing her suburban Portland property and using the proceeds to subsist in retirement.

“Oregon’s land-use system has destroyed my retirement,” English wrote in a newspaper op-ed that led to the spots. “My property has been stolen from me. And since my land can’t be used for anything, the community doesn’t generate any added tax revenue to pay for schools, parks and other services. My land has become worthless to everyone except those zealots who think Oregon should shut its borders and stop all growth.”

On election day 2004, Measure 37 won more than 60 percent of the vote — a huge margin that spurred similar ballot measures in six other Western states. The libertarian Reason Foundation issued a euphoric report detailing ways of “exporting Measure 37 to other states” — a potential preview of how the fossil fuel industry might try to capitalize on an Amendment 74 victory in Colorado.

“[Colorado’s] is a very similar title to what we had in Oregon, and we really couldn’t overcome the title because it’s hard to get people to vote no on a principle like that, because everybody would say, ‘Well, yeah, that’s a fair principle,’” says Tim Nesbitt, a former Oregon AFL-CIO president and top aide to two Democratic governors. “It’s a very compelling statement to most people. That’s what was so clever about it.”

Over the next two years, Oregon’s legal system descended into chaos. As powerful as stories like English’s were in helping to pass the measure, new horror stories about Measure 37’s real-world consequences soon became an equally forceful counter-narrative challenging all the fairness rhetoric that had dominated the original ballot campaign.

There was the developer who used the initiative to demand up to $35 million for alleged damages over a land-use law that had prevented him from converting 850 acres of forest into housing plots, according to a report from the nonpartisan Sightline Institute. There was also the $18 million claim from a landowner outside of Salem who wanted to turn farmland into a new development, even though such a plan threatened to “severely draw down the streams,” a nearby lake and neighbors’ wells, according to the Sightline report.

And there was the landowner whose property lay within one of the state’s natural wonders, the Newberry National Volcanic Monument. He demanded up to $200 million in compensation unless the county government allowed him “to build a large-scale mine, a geothermal power plant and 100 homes” along scenic East Lake, according to the Bend Bulletin.

Color-coded cartograms of Measure 37 claims in northwest Oregon resembled Centers for Disease Control maps of a viral epidemic. Red flecks showing properties subject to remuneration or zoning waivers had soon blanketed the area, bleeding into rural regions where there was little infrastructure or services to support development. The county adjacent to Portland saw owners of more than 115 square miles of property — or a full 15 percent of the entire county — filing Measure 37 claims, with the cases coming from a mix of individuals and corporate interests.

“When 37 passed it nullified the farm and forest zoning so owners worked to cash in,” says Liz Kaufman, who ran the campaign to repeal parts of the constitutional amendment. “They filed ‘claims’ with the state stating their intended developments. It not only would have wiped out our whole land use planning system, it would have run over substantial swaths of farm and forest land, and placed developments where there is no fire service, much less all the other basics.”

Just two years after the passage of Measure 37, nearly 7,000 claims were filed for a total of $17 billion worth of taxpayer compensation, according to the Oregon Department of Land Conservation and Development. The measure wreaked such havoc that in the next election, Oregon voters passed another initiative repealing much of the original amendment. That same year, voters in neighboring Washington State overwhelmingly rejected a separate version of the property rights initiative after opponents there ran ads casting Oregon as a cautionary tale.

Colorado is now the newest political petri dish for the same experiment — only the 2018 version is designed to go even further. Unlike Oregon’s measure, Amendment 74 includes no exceptions for laws dealing with health or safety, and it was deliberately written in a passive tense, which could allow it to be retroactively applied to existing laws. Also unlike Oregon’s measure, Colorado’s initiative is constitutional, not statutory, meaning it governs all laws and cannot be tweaked by the legislature.

“That’s a key difference this time: In Colorado they’re using our Constitution to try to crush workers,” says SEIU’s Ruggiero, who asserted that corporations could use the amendment to file lawsuits arguing that labor laws reduce the profitability and value of businesses, and therefore require such laws to be rescinded, or taxpayers to pay damages.

In an effort to evade comparisons with Oregon’s apocalypse, proponents of Amendment 74 have lately insisted that their initiative is fundamentally different.

“Colorado Amendment 74 would maintain existing legal standards and procedures for establishing a takings claim,” wrote Republican attorney Jonathan Anderson in a letter demanding a local television station remove anti-74 ads from the airwaves. “In sharp contrast, Oregon Measure 37 applied a completely different legal standard.”

Still, the general thrust of the two policies are the same — and strategist Rick Ridder tells Capital & Main that the overall similarities between the Measure 37 and Amendment 74 campaigns are no coincidence. He notes that the consulting firm overseeing the campaign for Amendment 74 and against Proposition 112 is not a Colorado company, but the Portland-area firm Pac/West, which has been given $26 million by the oil and gas industry’s issue committees. Pac/West is run by Oregon’s former GOP Assistant Senate leader Paul Phillips, who did not respond to requests for comment for this story.

“I think the right wing realized a while back that these initiatives weren’t necessarily a great move, but then along comes the setbacks initiative here in Colorado, and the oil and gas industry has been working with Paul Phillips for a long time,” says Ridder, who is advising the issue committee opposing Amendment 74. “Paul Phillips is from Oregon. He very likely knew about Measure 37 and how deceptive and effective it could be for oil and gas here in Colorado.”

During a discussion about Amendment 74 in the final week of the 2018 campaign, Kulongoski, the former Oregon governor, said his state’s experience is an instructive parable about private property initiatives — and about complacency.

“For a while I think Oregonians fell asleep on this measure thinking it wasn’t going to pass, and it passed,” he says. “I was strongly criticized by the land-use groups because they thought that I didn’t make a big enough effort to get it defeated and the fact was that we all can share the blame for that. I think even the land use groups were not putting money into the measure because they didn’t think it was going to pass.”

“I Am Really Worried This Is Our Generation’s TABOR”

Unlike Oregon officials a decade ago, Colorado’s current government and civic leaders cannot claim to be surprised by the prospect of radical constitutional change, because the state has famously been at this precipice before.

In a 1992 election overshadowed by a presidential campaign, a ballot fight over LGBT rights and a sales tax proposal, Coloradans approved a simple-sounding constitutional measure called the Taxpayer’s Bill of Rights, which severely restricted the state’s authority to fund public services. Despite its clear and unprecedented radicalism, TABOR blindsided a distracted political establishment.

“Lots of people in state government and in politics did not fully know how impactful it would really be,” says Henry Sobanet, who served as budget director for Hickenlooper and Republican Gov. Bill Owens.

Though some of its most disruptive provisions have been repealed over the last quarter century, TABOR forever altered the course of Colorado history, setting the state on a path towards many problems that still plague it today, including underfunded schools, crumbling roads and a regressive fee-based revenue system that disproportionately hurts its poorest residents.

Colorado’s current generation of political elites has risen to power in TABOR’s shadow. But the battle over Amendment 74 — or rather the lack thereof — raises questions about whether they’ve taken any of its lessons to heart.

“I am really worried this is our generation’s TABOR,” says state Rep. Jonathan Singer, a Democrat who represents towns in the Wattenberg Field. “Everyone has been so focused on the big races for governor and Congress, but this is one of the biggest things on the entire ballot, and I feel like lots of people don’t even know that.”

While Amendment 74 has been nominally criticized by political figures on both sides of the aisle, talk is just talk — and resources to fight the measure have been limited and late in coming. The issue committee formed to oppose the initiative, called Save Our Neighborhoods, was only registered in August, just three months before the election. Even though Colorado’s business groups and big donors have plenty of campaign resources at their disposal, Save Our Neighborhoods has raised less than $3 million, most of it from environmental organizations like Conservation Colorado and the League of Conservation Voters.

“Amendment 74 has the potential to be the most consequential change to Colorado’s constitution since TABOR,” says Rob Witwer, a former Republican state legislator. “It’s fraught with unintended consequences that won’t be sorted out, or even fully understood, before a decade of litigation. In light of that, the absence of well-funded opposition is shocking. It’s almost as if everybody expected somebody else to fight it.”

Key leaders have also been largely absent from the fight — and among the most glaring absences is Hickenlooper, whose two terms in office will come to an end in January.

The Democratic governor has voiced opposition to the amendment, calling it “one of the worst initiatives that I have seen” at a press conference outside the Capitol in October. But despite his long history of high-profile advocacy on behalf of major ballot measures — as mayor of Denver in 2005, he famously jumped out of a plane in a TV ad supporting Referendums C and D — he hasn’t done much public campaigning or expended much political capital in the fight against Amendment 74.

After eight years of siding largely with the oil and gas industry in the state’s bitter war over fracking, Hickenlooper is now casting himself as a conflict-averse moderate who believes “there is no margin in having enemies,” as he recently told the New York Times. And so rather than barnstorm the state to genuinely confront and challenge the powerful forces behind Amendment 74, he has spent much of the election season stumping for a less controversial redistricting reform effort and a sales tax increase for transportation funding — and traveling out of state to help Democratic candidates in Georgia and Florida as he raises money for his 2020 presidential exploratory committee.

Hickenlooper is hardly alone. United States Senators Michael Bennet and Cory Gardner — who, like Hickenlooper are not tied up campaigning for reelection — have not used their platforms to aggressively campaign against Amendment 74. Similarly, while experts warn of the amendment’s catastrophic consequences for business, the Colorado Association of Commerce and Industry has kept a low profile on the measure — and its chairman, Jonathan Anderson, was the lawyer who pressured a local television station to remove negative ads against the amendment.

And even though the measure has as many long-term implications as the race for governor, it has received only a fraction of the ongoing coverage from the state’s political press corps.

“I’ve pleaded, and cajoled, and yelled, and screamed, and cried, and done everything with all kinds of people in town here over the last six months,” says Mamet. “I won’t get into names, but I had some hot shots in town just pat me on the head and say, ‘Oh, Sam, don’t worry about it.’ The more people were telling me that, the more concerned I got.”

Opponents fear that the amendment’s terse ballot language could lead voters to approve it without fully understanding its colossal implications. And they are right to be worried: An online survey conducted by Colorado University, Boulder’s American Political Research Lab this month showed Amendment 74 with 63 percent support, comfortably ahead of the 55 percent that, as a constitutional measure, it needs to pass.

If it does pass — if the oil and gas industry successfully detonates its economic nuclear weapon — communities across Colorado will be ground zero in a blast that could reverberate at every level of society.

At a global level, Colorado is a major oil- and gas-producing state at a moment when scientists are warning that if substantial reserves of oil and gas are not left in the ground, hundreds of millions of people around the world will face the threat of devastating droughts, floods and poverty. Already struggling with all of those crises, Colorado would face its share of consequences should the state — and the larger world — be forced by Amendment 74 to continue supporting the current rate of fossil fuel extraction and use.

On a national level, a victory for Amendment 74 in a bellwether state could inspire oil and gas companies to finance copycat measures in other states — and especially in those Western fossil fuel states such as California and Montana, where private property initiatives were already tried in the mid 2000s.

And then there is the local level, in communities like Erie, where Erika Deakin and her family live just across the way from multiple oil and gas production facilities.

The town’s nearby highway interchange offers an almost too-on-the-nose visual of the conflict at the heart of Amendment 74: there is a towering white scaffolding of a fracking rig, fronted by a billboard advertising a Toll Brothers home development down the road.

When Deakin and her husband Geoff moved there in 2002, they were coming for the good life that those new-home billboards promise: open spaces, running trails, excellent schools and an easy commute to her job as the editorial page editor of the Boulder Daily Camera. They were not coming for the Wattenberg Field or its pitched fights over fracking regulations — and they had no idea that two small well sites would blossom into 13 right behind their home, or that 13 would soon become 45.

Over coffee at her breakfast bar on the eve of the election, Deakin recounts how in 2014 and 2015, Encana Corporation’s original fracking operations blasted out the neighborhood with 24-hour noise pollution — a loud revving at all hours of the night. She also describes the notorious odor that wafted into the neighborhoods from drilling mud and diesel lubricants at the well pads.

“We couldn’t open our windows for weeks because of the stench from the sites, and then they used this green apple chemical to try to mask the smell,” says Deakin, a 45-year-old Colorado native whose husband is now an Erie town trustee. ”It was like, if somebody used Axe Body Spray to cover up their chain-smoking habit. It was so smelly and so disgusting.”

When the subject of health comes up, tears well up in her eyes, as she decides how to answer a question about her kids.

“I have a daughter who has massive bloody noses all the time,” says Deakin, who left the Daily Camera in 2014 and now works in marketing. “I’m not going to say, ‘Oh, it’s definitely fracking,’ but when you are faced with that and then you open your window and you smell this really potent smell, like it smells like you’re at a truck stop, you’re like, ‘Why won’t they disclose their chemicals?’”

Deakin and her family are not private property — Amendment 74 would not empower them to file a lawsuit seeking compensation for the fair market value of their health. But if Erie officials took action against oil and gas companies to protect her and her family, those companies could weaponize the amendment, if it is on the books. The language would allow the fossil fuel industry to threaten the town with bankruptcy unless it backed off and left the Deakins to continue wondering whether they are being poisoned.

“There’s a ton of women in this neighborhood who tell you that their children’s noses bleed — they call them gushers,” Deakin says, her voice cracking. “When you do smell something or you see all of this industrial activity you do start to think, all of our bodies react to industrial activities differently. You start to wonder, What am I breathing? I’ve had skin cancer and a ton of my friends didn’t. Am I more prone to it because I’m living in such a heavy industrialized area? I don’t know.”


CLARIFICATION: The original version of this article noted that the RS Energy Group report released by Colorado Rising said it was “intended only for individuals in the anadarko.com organization.” However, RS Energy Group is an independent industry research firm, and the report was available to all of its clients, and not conducted for any one client. The story has been updated to reflect this additional context.


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Immigration

ICE’s Stealth Campaign to Expand Its Budget

The new Democratic majority in the House of Representatives could pose a challenge to the agency’s chronic overspending — and to its aggressive detention and deportation policies.

Robin Urevich

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Photo: DHS/ICE

In June the Dept. of Homeland Security asked Congress to allow it to transfer $200 million to ICE to cover agency overspending, continuing a pattern of such requests.


Big spending on immigration enforcement at the Department of Homeland Security promises to be a major sticking point as Congress prepares to negotiate a budget deal early next month.

Even though illegal immigration to the United States appears to be at its lowest point in 46 years, spending on immigration enforcement is at an all-time high. (The U.S. Border Patrol reported that in 2017, the last year for which statistics are available, apprehensions at the U.S.-Mexico border had dropped to 303,000, and had been declining nearly every year since 2000, when a record 1.6 million people were arrested.)


 By overspending its congressional allocation, ICE is effectively writing its own budget.


U.S. Immigration and Customs Enforcement’s detention operations exceeded the agency’s budget this year, while ICE spending on its vast system of immigration jails shows no sign of slowing.

But a newly elected Democratic majority in the House of Representatives could pose a challenge to the agency’s chronic overspending — and to its aggressive detention and deportation policies.

ICE jailed so many immigrants in 2018 that it ran out of space in its more than 200 lock-ups, and placed 1,600 people in medium-security prisons.

Congress set detention and deportation spending for 2018 at $4.4 billion, enough to detain some 40,520 people annually.

However, by June, 44,000 men and women languished in immigration detention, filling 4,000 more beds than Congress authorized. DHS asked Congress to allow it to transfer $200 million to ICE to cover agency overspending. The department plucked the funds from several of its agencies, including the Federal Emergency Management Agency, the Coast Guard and the Transportation Security Administration.

Critics of ICE say that by overspending its congressional allocation, the agency has engineered a stealth expansion of the U.S. detention system, effectively writing its own appropriation, and skirting the Constitution’s separation of powers in which Congress, not the executive branch, has the authority to set spending limits.


Congressman: “We shouldn’t be using FEMA as a piggy bank to fund detention beds.”


“It allows them to quickly expand the detention system contrary to congressional intent,” said Heidi Altman, director of policy at the National Immigrant Justice Center, a non-profit immigrant rights group.

Such intradepartmental funds transfers aren’t uncommon, but a congressional staffer who asked that his name not be used for this story said this one was controversial because nearly all of the money went to ICE for detention and deportation. ICE has received other big budget increases in the past two years. In March 2017, the agency got a $2.6 billion supplemental appropriation; three months later, ICE was back, requesting that Congress approve a $91 million funds transfer.

The $200 million June 2018 transfer, wrote DHS spokeswoman Katie Waldman in an email, was “in line with the FY 2019 president’s budget request for U.S. Immigration and Customs Enforcement.”

However, the additional funds covered FY 2018 overspending – not future shortfalls in 2019; Congress has yet to agree to a permanent fiscal year 2019 budget. Waldman didn’t answer an email asking to clarify her comments.


Congressional Staffer: Whenever ICE outspends its budget and adds detention beds, it gains leverage for the next round of budget negotiations.


The same congressional staffer who discussed the controversy surrounding the $200 million DHS funds transfer also noted that when ICE outspends its budget and adds detention beds, it gains leverage for the next round of budget negotiations because reducing beds would mean freeing detainees and, ICE argues, their release could jeopardize public safety.

Growth by funds transfer also generally avoids public scrutiny. Transfer documents submitted by government agencies are not released to the public. But earlier this year, Sen. Jeff Merkley (D-OR) released DHS’s June 2018 transfer and reprogramming request, noting that $10 million had been taken from FEMA just as Hurricane Florence was making landfall in North Carolina.

DHS shot back, claiming the funds were administrative and weren’t earmarked for hurricane relief. But according to Ur Jaddou, director of the advocacy group DHS Watch, and a former Chief Counsel at U.S. Citizenship and Immigration Services, the DHS agency that oversees immigration and citizenship applications, “The government these days doesn’t operate on a plethora of administrative resources. It’s really functioning on a very limited budget. When they say they’re using unused money, it’s just a ruse.”

Congress has shown its frustration with ICE’s disregard for its authority, but hasn’t acted to rein in agency spending.


Congress has scolded ICE for its “lack of fiscal discipline and cavalier management.”


In budget recommendations for fiscal year 2019, the Senate Appropriations Committee wrote, “In light of the Committee’s persistent and growing concerns about ICE’s lack of fiscal discipline, whether real or manufactured, and its inability to manage detention resources…the Committee strongly discourages transfers or reprogramming requests to cover ICE’s excesses.”

Two years before, the explanatory language in the supplemental appropriations bill was even harsher. Appropriators pointed to a “lack of fiscal discipline and cavalier management” of detention funding, saying the agency seemed to think its detention operations were “funded by an indefinite appropriation. This belief is incorrect.”

“We shouldn’t be using FEMA as a piggy bank to fund detention beds,” said Rep. Dutch Ruppersberger (D-MD). “Unelected agency heads shouldn’t unilaterally shift taxpayer dollars for purposes they weren’t intended.”

Still, despite congressional annoyance with ICE’s free-spending ways, it hasn’t conducted meaningful oversight of the immigration detention system, said Greg Chen, director of government relations for the American Immigration Lawyers Association.

“The current leadership in Congress hasn’t been interested in conducting hearings on detention spending and whether detention is even necessary at the scale it is now,” Chen said.

When President Trump issued an executive order calling for no-holds-barred arrests of undocumented immigrants in January 2017, the border patrol reported that apprehensions at the U.S.-Mexico border were lower than at any time since 1972 — when the detention population was a fraction of its current size.

ICE reported that in fiscal year 2017, 41 percent of crimes of which detainees had been convicted were traffic- or immigration-related.  Just 11.4 involved murder, sexual assault, kidnapping, robbery or assault.

Chen argued that ICE has a legal responsibility to screen each person in its custody for risk – either of flight or to public safety. “ICE is just not doing that and defaulting to the practice of detaining people.”

Democrats in Congress could take on a more robust role in overseeing ICE spending, now that they’ve gained a majority in the House. They could put conditions on spending, call for Government Accounting Office reports and hearings, cut funding, demand answers if ICE overspends and bring its actions to the attention of the press, said DHS Watch director Ur Jaddou, who is also a former congressional staffer.

“The next time they [ICE] need something,” Jaddou said, Congress can respond, ‘Do you really want it? You better listen.’”


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Education

Will New York Fund Amazon Subsidies or Student Debt Relief?

New York Gov. Andrew Cuomo made headlines begging Amazon to site its second headquarters in the state. Now, however, prominent Democrats in the state Senate and Assembly have slammed the idea of offering taxpayer subsidies to the retail giant.

David Sirota

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Long Island City photo by King of Hearts

Co-published by Splinter

Elections have consequences, and they may have particularly immediate consequences for billionaire Jeff Bezos, as newly empowered New York Democrats appear to be positioning themselves to try to block new state subsidies for Amazon, now that the online retailing titan has chosen New York City and Northern Virginia as new headquarters locations.

A day before last week’s midterm elections, when Amazon’s choice was still up in the air, New York Gov. Andrew Cuomo made headlines begging Amazon to site its second headquarters in the state. “I’ll change my name to Amazon Cuomo if that’s what it takes,” said Cuomo, as reports surfaced about Amazon potentially moving in to Long Island City.

The next day, though, Democrats won control of the state Assembly and state Senate. Now, prominent Democrats in those chambers have slammed the idea of New York offering taxpayer subsidies to Amazon. And one lawmaker wants the legislature to decide between giving Amazon taxpayer largesse or addressing the state’s student debt crisis.

Democratic Assemblyman Ron Kim announced that he will introduce legislation to slash New York’s economic development subsidies and use the money to buy up and cancel student debt — a move he said would provide a bigger boost to the state’s economy. The legislation, says Kim, would halt any Cuomo administration offer of taxpayer money to Amazon, which could reap up to $1 billion in tax incentives if it moves to Long Island City. The deal is a goodie bag for Amazon: It includes everything from a $325 million cash grant to a promise that taxpayers will help secure a helipad for Amazon executives.

“Giving Jeff Bezos hundreds of millions of dollars is an immoral waste of taxpayers’ money when it’s crystal clear that the money would create more jobs and more economic growth when it is used to relieve student debt,” said Kim, who recently published an op-ed with law professor Zephyr Teachout criticizing the Amazon deal. “Giving Amazon this type of corporate welfare is no different, if not worse, than Donald Trump giving trillions in corporate tax breaks at the federal level. There’s no correlation between healthy, sustainable job creation and corporate giveaways. If we used this money to cancel distressed student debt instead, there would be immediate positive GDP growth, job creation and impactful social-economic returns.”

New York has the most expensive set of corporate subsidy programs in the country, and a report by the W.E. Upjohn Institute for Employment Research found that such subsidies “are not cost-effective, with either no statistically significant effects or large costs per job created.” Kim noted that in 2015 alone, New York gave out more than $8 billion in corporate incentives. He pointed to a recent study by the Levy Institute that found cancelling student debt would result “in an increase in real GDP [and] a decrease in the average unemployment rate.”

In New York, student debt has ballooned. A 2016 report by State Comptroller Thomas DiNapoli’s office found that “the delinquency rate among New York student loan borrowers rose by more than a third over the past decade while average borrower balances in the State increased by nearly 48 percent, to $32,200.” A memo outlining Kim’s bill says the legislation would empower New York officials to “exercise their eminent domain powers to buy, cancel, and/or monetize the state’s out of control student debt,” which the memo says totals more than $82 billion.

Kim’s move followed criticism of a possible Amazon deal by Senator Michael Gianaris, who led Democrats’ successful effort to win control of the chamber, and who is expected to be in one of the Senate’s top jobs.

“Offering massive corporate welfare from scarce public resources to one of the wealthiest corporations in the world at a time of great need in our state is just wrong,” Gianaris and City Council Member Jimmy Van Bramer, both of whom represent Long Island City, said in a press release. “The burden should not be on the 99 percent to prove we are worthy of the one percent’s presence in our communities, but rather on Amazon to prove it would be a responsible corporate neighbor.”


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2018 Election Results

7 Takeaways from California’s Elections

Two of the biggest shockers happened in Los Angeles and Orange counties, in races that have historically drawn the most conservative voters: sheriff and district attorney.

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Official voting results are weeks away from getting verified for the 2018 general election, but big, historic trends are already emerging: some old, some new, some bad — and a lot of Blue.


1. Real estate interests prove again that they’re some of the evilest people in California history

The people who helped to bring to the Golden State housing covenants, redlining, Proposition 13, the overturning of the Rumford Fair Housing Act, McMansions in canyons that always burn and so much more housing nastiness were on the wrong side of history again this election cycle. They spent at least $74 million to demonize Proposition 10—which would only allow municipalities the right to consider rent control—to the point where even renters felt it was a nefarious plot to destroy property values and bankrupt elderly landlords. Unsurprisingly, Prop. 10 lost by a nearly two-thirds majority, and real estate special-interests groups will spend even more if another such measure ever goes statewide again.

2. The Democrats’ next big battleground will be the Central Valley

Most of the Dems’ millions were spent on flipping Orange County blue, but as I wrote for the Los Angeles Times recently, the Democrats can learn a lot for 2020 by what’s happening in the Central Valley. There, Latino candidates have climbed the political ladder from school board seats to a majority of the Valley’s state Assembly and state Senate seats, flipping two of the latter with Latinas (Anna Caballero in the 12th, Melissa Hurtado in the 14th) on Tuesday. What they yet don’t have is one of the congressional seats held by the region’s Four Horsemen of the Apocalypse: David Valadao, Jeff Denham, Kevin McCarthy and Devin Nunes, all whom won their races this time around (although Denham is still sweating his out). Expect the Dems to groom some rising stars for 2020—and expect them to mine data from the Valley about how to attract rural voters.

3. People in Southern California mistrust law enforcement more than ever before

Two of the biggest shockers happened around elected positions that have historically drawn the most conservative voters: sheriff and district attorney. In Orange County, Supervisor Todd Spitzer handily beat 20-year incumbent DA Tony Rackauckas, who has been dogged by a jailhouse snitch scandal for years. But even more surprising was the Los Angeles County Sheriff’s race, where Jim McConnell—supported by virtually the entire L.A. political class—lost to former deputy Alex Villanueva. Villanueva will be the first Democratic sheriff in more than 100 years.

4. Los Alamitos is now unofficially Southern California’s City of Hate

The tiny northwest Orange County town made news earlier this year when the city council decided to pass an ordinance protesting California’s sanctuary state law. The councilman who pushed that resolution, Warren Kusumoto, was reelected this week. But also winning a seat was former councilmember Dean Grose, who made national headlines in 2009 when he emailed a racist cartoon of a watermelon patch growing outside the Obama White House.

5. AIDS Healthcare Foundation needs to stop wasting money on propositions

The nonprofit giant spent over $23 million on the Yes on 10 battle, two years after spending $4.5 million on Proposition 60 to mandate condoms on adult films sets in California and more than $14 million on Proposition 61 to regulate prescription drugs bought by the state. Last year, it spent $5.5 million on Measure S, an anti-development ordinance in Los Angeles. All that money went to nothing, as each measure lost handily. Maybe AIDS Healthcare Foundation head Michael Weinstein should’ve spent that $47 million on services?

6. The California GOP’s last, best hope are Asians

The party has long been dead in the state, but a glimmer of hope has emerged for it in Orange County. Asian-American Republicans there now hold one congressional and state Senate seat, two state Assembly spots, three of the five chairs on the Board of Supervisors, and multiple school board and city council positions. And the new mayor of Anaheim, Orange County’s largest city, is Indian-American Harry Sidhu. Leave it to Orange County to get minorities to side with the Party of Trump!

7. With five of seven congressional seats now Democrat, this ain’t your dad’s Orange County anymore

It’s not even your Orange County. A brave new OC awaits all of us, indeed….


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Why Was Climate Change Omitted From Colorado’s Debate Over Fracking?

Co-published by Westword
The total absence of climate change discussion in Colorado’s 2018 election was striking, considering the state’s intensified floods, droughts and wildfires.

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Illustration: Nicolás Zúñiga

Over eight debates between gubernatorial candidates Jared Polis and Walker Stapleton, Colorado’s press corps mustered just three questions about climate change.


 

Co-published by Westword

It is no overstatement to say that Colorado’s Proposition 112 and Amendment 74 were two of the most significant and far-reaching climate change measures in America’s entire midterm election. But don’t blame yourself if you didn’t know that. While the initiatives sparked a pitched battle about the fossil fuel industry just as scientists were issuing a dire warning about climate change, that term — “climate change” — was largely absent from the state’s political conversation in 2018, even though some local officials say climate change could cost the state hundreds of millions of dollars in the near future.


While Colorado’s oil and gas industry was asserting that burning carbon-emitting fracked gas is “helping to reduce carbon emissions,” it sponsored an anonymous website attacking journalists who report on energy and climate issues.


Oil and gas corporations spent roughly $40 million to oppose 112, which would have mandated larger distances between fossil fuel extraction sites and schools, hospitals and residential neighborhoods, and likely restricted some fossil fuel development. Some of that money also went into promoting 74, which would have empowered those same oil and gas companies to sue towns that try to restrict drilling and fracking. While the industry offered a smorgasbord of arguments in its campaign — it would defund schools, it would kill jobs, etc. — those criticisms were all based on one central premise: that the setbacks measure would allegedly ban all new oil and gas exploration.

Had climate change been a central topic of conversation, that assertion could have boomeranged on the industry — proponents could have argued that an all-out ban was in fact urgently needed in light of a recent United Nations report warning of a full-fledged dystopia if new fossil fuel development is not halted. And they might have found a receptive audience: Recent polling from the University of Colorado has shown that 70 percent of Coloradans say they are at least somewhat concerned about climate change — and that survey was done before a summer of climate-change-intensified wildfires.


Even though Prop. 112 was not a total ban on fossil fuel extraction, at least a few national voices noted that it represented an important front in the climate change battle.


However, the Colorado press corps barely mentioned climate change in its coverage of the fight, and groups pushing the proposition never made climate change a central argument in their campaign.

An analysis by Media Matters found that out of 12 Colorado newspaper editorials about 112, just one — that of the Boulder Daily Camera, which endorsed the measure — even mentioned climate change. News coverage of 112 focused alternately on the health and environmental hazards highlighted by activists and industry doomsaying about its economic and budgetary implications, but reporting on fossil fuel-related carbon emissions and their contribution to climate change was almost nonexistent.

That was true not only of the fight over 112, but of the state’s wider political discourse. Over eight debates between governor-elect Jared Polis and opponent Walker Stapleton, the Colorado press corps mustered just three questions about climate change, accounting for less than 10 minutes of discussion during eight and a half hours of debate.

Meanwhile, the Colorado Oil and Gas Association was sponsoring an anonymous website attacking journalists who report on energy and climate issues. And as a backup measure to defang any potential climate arguments, the industry also ramped up its production of promotional PR asserting that burning carbon-emitting fracked gas is “helping to reduce carbon emissions,” as COGA insists. That assertion relies on the public never realizing that it’s only true in comparison to burning coal, but not actually true overall: Natural gas is a fossil fuel, so carbon is emitted when it is burned — no matter what COGA tries to insinuate.


The defeat of an explicitly climate-related ballot measure in Washington State suggests that many voters are not willing to support even modest efforts to frontally address climate change.


That context, though, is rarely noted in a political arena that has long been dominated by armies of fossil fuel lobbyists and millions of dollars of fossil fuel campaign spending. This year, much of that money was spent on ads designed to narrow the debate to one primarily about jobs and economic impact, thereby precluding 112 campaigners from broadening the conversation to one about the climate change dangers of fossil fuel extraction. Colorado Rising, the group behind Proposition 112, was boxed into making arguments only about better protecting the public health and safety of those living near fracking rigs, and to defensively insist that the measure wasn’t an actual ban.

In a media environment that was already erasing climate change from the conversation, there was no space for them to more straightforwardly argue that dramatic reductions in fossil fuel extraction are necessary to address climate change.

“What the polling is showing is that if people are really convinced that it’s an outright ban, they aren’t going to vote for it,” Colorado Rising’s Anne Lee Foster told Capital & Main when asked why climate change wasn’t a more prominent part of the campaign. “It’s not about what the actual percentage [ban] is, it’s proving that they have been blowing this out of proportion the whole time.”

At times, 112’s proponents ended up publicly asserting that the measure would not significantly reduce fossil fuel extraction at all, even as climate scientists argue that’s exactly what’s necessary.

“The oil and gas folks out there will still be able to do their thing,” said Mark Williams, a former Democratic congressional candidate, at a Longmont town hall where he promoted 112. “My concern is you have all these operators that are out there that are trying to make a quick buck, [but] Colorado does not have strong enough regulations.”

There’s no guarantee 112 would have been more successful had the proponents tried to focus the fight on climate change; the oil and gas industry’s success in defeating an explicitly climate-related ballot measure in Washington State suggests that many voters are not willing to support even modest efforts to frontally address climate change.

However, the total absence of the issue in Colorado’s 2018 election was striking, considering not only the IPCC report, but also the state’s own specific struggles with the effects of climate change. After all, leading scientists say that climate change is already intensifying Colorado’s floods, droughts and wildfires. And although COGA has demanded that “natural gas must be part of the climate change conversation,” many of those scientists disagree.

“There is more than enough carbon in the world’s already developed, operating oil, gas, and coal fields globally to exceed 2°C,” wrote a group of 26 climate scientists in a July letter to California Governor Jerry Brown, urging him to immediately halt the approval of all new oil and gas drilling. “There is simply no room in the carbon budget for any new fossil fuel extraction.”

“Absolutely no new fossil fuel developments. None,” said climate scientist Will Steffen, when asked earlier this year what the U.S. needs to do to help avoid global catastrophe. “That means no new coal mines, no new oil wells, no new gas fields, no new unconventional gas fracking. Nothing new.”

This is why even though 112 was not a total ban on fossil fuel extraction, at least a few national voices noted that its potential to somewhat reduce that extraction represented an important front in the climate change battle.

In a guest column for the Denver Post, former NASA scientist James Hansen encouraged Coloradans to vote for 112 because it would “help prevent climate change by making oil and gas harder to access.” Senator Bernie Sanders, who has called for a nationwide ban on fracking, also endorsed the measure on climate-related grounds. And toward the end of the campaign, 350.org founder Bill McKibben promoted the measure as part of his organization’s nationwide push to combat climate change.

But by that point, the industry’s PR machine was already skilled at suppressing any discussion of climate change and transforming every 112 argument into economic alarmism. An editorial in oil magnate Phil Anschutz’s Colorado Springs Gazette was emblematic: In attacking McKibben, it didn’t even bother to mention climate change, much less address his substantive argument.

Instead, its headline simply screamed, “Out-of-stater comes to kill Colorado jobs.”


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2018 Election Results

CA-49: A GOP District Realigns With Democrats After Mike Levin Victory

Republican Diane Harkey ended her dispirited campaign by attempting to distance herself from Trump’s personality but supporting him on “substance.”

Kelly Candaele

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Mike Levin

Was the victory of Democrat Mike Levin in the 49th Congressional District race a decisive one? It seems so. Levin’s roughly seven point victory over Republican Diane Harkey might make newcomers to the district – running from southern Orange County down the coast to northern San Diego – wonder how Republicans have dominated that stretch of California for so long.

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Demographic shifts explain part of what happened. Educated high-tech workers have moved into the area, and Levin targeted Latinos and women in this “year of the woman.” Levin was also blessed with a weak opponent plagued by her husband’s financial scandals.

But perhaps something beyond political math was also taking place. Decades ago political scientist Walter Dean Burnham worried that American political parties had deteriorated to such an extent that they could not deal with critical national and international issues. Burnham lamented the decline in voting participation, particularly among the lower classes, and trained his analytical eye on “realignment” elections that led to durable shifts in political coalitions and public policy. The results in the 49th district could be such a realignment where a general political crisis can force a breakthrough and renewal.

One sign of how much has changed in the 49th is that Levin brought Bernie Sanders to campaign with him in the final week of the campaign, a risk in what most political observers regard as a “centrist” district. Sander’s message denouncing the state of our health care system and the cost of higher education is neither scary nor politically costly when it resonates with the realities of so many people’s lives.

Harkey ended her dispirited campaign by attempting to distance herself from Trump’s personality but supporting him on “substance,” meaning the “booming” economy she said he created.

For many voters, the “substance” now is their aesthetic and existential disgust at how President Trump is attempting to re-create our country.

The current battle may lead to the rebuilding of a political force on the progressive side that is able to fight more effectively by forging broader, more sustainable coalitions. That rebuilding is certainly under way in the 49th Congressional District.


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2018 Election Results

Proposition 11: Emergency Crews Lose Out

Framing Prop. 11 as necessary to protect public safety was a strong argument, but it didn’t help that the opposition failed to file paperwork in time to have their arguments against the measure included in the state’s voter guide.

Gabriel Thompson

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Proposition 11, which rewrites California’s Labor Code to allow private ambulance companies to require paramedics and EMTs to be on call during breaks, cruised to an easy victory on election night, with 60 percent voter support. The result wasn’t surprising; polling showed the measure was leading by a two-to-one margin. Prop. 11’s primary supporter, private ambulance company American Medical Response, vastly outspent the opposition, pouring $22 million into the campaign to argue that response times to emergencies would increase if the measure were defeated.

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The proposition came in the wake of a 2016 California Supreme Court ruling that private security guards are required to be given uninterrupted rest breaks. That ruling likely would apply to the state’s private sector EMTs and paramedics, who are also on call during breaks, and who have filed several lawsuits challenging the practice, including one against AMR. Last year, a legislative attempt to solve the problem stalled in the face of AMR opposition; one of the sticking points was whether the bill would protect AMR from active lawsuits. (As written, Prop. 11 shields AMR from liability regarding breaks in pending litigation.)

Framing Prop. 11 as necessary to protect public safety was a strong argument, but it didn’t help that the opposition, led by the United EMS Workers, an American Federation of State, County and Municipal Employees local, failed to file paperwork in time to have its arguments against the measure included in the state’s voter guide. (Disclosure: AFSCME is a financial supporter of this website.) AMR largely drowned out the local’s attempts to highlight the grueling working conditions faced by emergency workers, and the need for extra staffing to allow more predictable breaks.

What remains to be seen is whether Prop. 11 will in fact shield AMR and other private ambulance companies from pending lawsuits, a decision likely to be determined in court. Jason Brollini, president-executive director of United EMS Workers, estimates that AMR could owe workers as much as $100 million in settlements if the cases are allowed to proceed.


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2018 Election Results

CA-25: Katie Hill Ends Knight Reign in Changing District

While Hill’s youth, bisexuality and comfortably modern persona got the attention of Vice and other media, Steve Knight was seemingly out of touch with his own constituents.

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Katie Hill went to bed last night at the end of an excruciatingly tight congressional race, not knowing if her home district was red or blue. At stake was California’s 25th District, where Hill spent the last 18 months on an unlikely quest to unseat two-term GOP Rep. Steve Knight. By six this morning, Hill, a 31-year-old first-time candidate, appeared to have won by more than 4,000 votes.

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The seat was among several Republican-held offices targeted by the Democratic Party, in districts won by Hillary Clinton in 2016, but it was never going to be easy. CA-25 had been in Republican hands since 1993, representing territory stretching from northern Los Angeles County to parts of Ventura County. It may have been tilting from red to purple, but Hill wisely shaped her campaign to the immediate kitchen-table interests of the district, and avoided all discussion of presidential impeachment, Russia or special counsel Robert Mueller.

“We’re not running an anti-Trump campaign,” Hill told Capital & Main early in the campaign. “I just don’t think that’s the issue that people care the most about here.”

Hill grew up in the tiny district town of Rosamond and, later, in Santa Clarita, and now resides in rural Agua Dulce. She was a cop’s daughter running against former LAPD officer Knight. Hill began her campaign after working eight years at PATH, one of the largest homeless services providers in California. Growing homelessness in CA-25 was one of her core concerns, along with health care and economic opportunity.

While her youth, bisexuality and comfortably modern persona got the attention of Vice and other media, Knight was seemingly out of touch with his own constituents, many of whom commuted daily to Los Angeles. He was on record as supporting legislation banning gay marriage and voted with President Trump 99 percent of the time, including the failed attempt to eliminate the Affordable Care Act. If her lead holds through the week’s final ballot count, Hill will join an unprecedented wave of women elected to Congress and presumably will take a new and far different path than Knight.


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2018 Election Results

CA-10: AP Calls Election for Josh Harder Over Republican Incumbent

Four-term Central Valley Congressman Jeff Denham appears to have been defeated after a week of ballot counting.

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Josh Harder

UPDATE, Nov. 13: The Associated Press tonight has declared Democratic challenger Josh Harder to be the winner over GOP incumbent Jeff Denham in the hard-fought 10th District race. According to AP, “With votes continuing to be counted, Harder’s edge has grown after Denham grabbed a slim lead on Election Day. After the latest update, Harder had a 4,919-vote lead out of about 185,000 votes counted, a margin too large for the congressman to overcome with remaining votes.”


A TV ad for incumbent Republican Congressman Jeff Denham stated that his Democratic challenger Josh Harder “shares Nancy Pelosi’s liberal San Francisco values.” The ad, running in the Sacramento media market and on digital platforms throughout California’s 10th District, went on to state that Harder, if victorious, would leave residents of this Central Valley district with dramatically worse health care options.

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It was a puzzling claim, considering Denham voted with his party to repeal the Affordable Care Act, or Obamacare, several times, and voted for the Republican replacement, the unpopular American Health Care Act.

As of Wednesday morning, Jeff Denham clung to a lead of 50.6 percent of the vote, with Harder claiming 49.4 percent. While 100 percent of precincts had reported, the race had not been called, pending the counting of mail-in and provisional ballots. Democratic activists said enthusiasm and campaign cash were up. Harder raised more than $7 million in this cycle to Denham’s $4.4 million.

Back in February, most of the volunteer canvassers trying to boost Democratic registration in Modesto, the heart of the district, were from the Bay Area. They said they had driven east to turn this purplish district solid blue. CA-10, which voted for Hillary Clinton by three points in 2016 while giving Denham a similar margin of victory, was one of the top Democratic targets for flipping in 2018.

Whether Denham or Harder end up winning, the trend of people relocating from the pricey Bay Area could end up re-shaping the electorate in the district. New research from BuildZoom and the Terner Center for Housing Innovation at the University of California, Berkeley shows a growing connection between the Bay Area and its neighbor to the east, CA-10. “More than 55 percent of Bay Area out-migrants in households earning less than $50,000 a year stayed in California, [heading to] more affordable markets, such as the Sacramento region or Central Valley metro areas, like Modesto or Fresno,” the study said.


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2018 Election Results

CA-21: Valadao’s Win Defies Demographics and Democratic Headwinds

Incumbent David Valadao grew up in the district, and has given unwavering support to agribusiness interests, a very important position in this largely agricultural region.

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David Valadao

California’s 21st District seemed like a plausible target to flip from red to blue in 2018 even though incumbent Republican Congressman David Valadao had beaten his Democratic challenger Emelio Huerta by 13 points in 2016. Hillary Clinton handily carried the district, and the demographics also looked good for a Democrat. The district is 71 percent Latino, a group that gave Clinton 66 percent of its vote nationwide two years ago. Republicans account for 27 percent of registered voters in CA-21, 16 points lower than Democratic registration. According to the political forecasting site FiveThirtyEight, Valadao voted with Trump policies nearly 99 percent of the time.

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Despite those headwinds for Valadao, and visits from Obama, former Vice President Joe Biden and Lt. Gov. Gavin Newsom, Democratic challenger TJ Cox fell far short. By early Wednesday, Valadao claimed 53.7 percent of the vote to 46.3 percent for Cox with provisional and mail-in ballots still to be counted.

Throughout the campaign, Cox was on the offensive, blasting Valadao’s votes for the unpopular Republican tax reform bill, and the even more unpopular American Health Care Act (ACHA) or “Trumpcare.”

Valadao claimed the Republican tax plan saved families thousands of dollars in a district with a far lower median household income than California as a whole. He also touted his willingness to break from Trump in a failed attempt at immigration reform earlier this year.

Valadao’s strong ties to the district may have given him an advantage. A dairy farmer, small-business owner and son of Portuguese immigrants, Valadao grew up in the district, and has given unwavering support to agribusiness interests, a very important position in this largely agricultural region. Cox, an engineer who has never held elected office, owns a home just outside the district in Fresno and earlier in the election cycle claimed a home in suburban Washington, D.C. as his principal residence.


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2018 Election Results

Proposition 5: Real Estate Industry’s Tax-Break Measure Stopped in Its Tracks

The failure of this homeowners’ tax-break measure might have been predictable–its creators didn’t mount much of a campaign, and evidently left it for dead.

Bobbi Murray

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Proposition 5 sunk at the polls Tuesday night with a 57 percent No vote. It had gotten little notice in the recent welter of ballot propositions– even though it had everything to do with two California obsessions—taxes and housing.

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State homeowners over 55, or who are disabled, are currently entitled to a onetime opportunity to transfer the property tax set by 1978’s Proposition 13 when they sell their home.

Prop. 5 would have expanded that tax break—making it transportable no matter how many moves and no matter the price of the new property. Someone wealthy enough to purchase beach-front property would still have artificially fixed low tax rates.

The California Realtors Association qualified Prop. 5 for the ballot and backed it with $13, 204,875—chump change in the world of California initiative politics.

Yes on Prop. 5 and No on Proposition 10 were prominent on the C.A.R website; spending on the soundly defeated Prop. 10, which would have expanded local governments’ ability to enact rent control, exceeded $45 million.

A California State Legislative Analyst’s report shows 85,000 homeowners 55 years or older sell property and move without extra tax enticements that drain state revenues and projected Prop. 5 would have drained $1 billion annually from schools and local government budgets.

Proponents tried to play the housing-shortage card, arguing that Prop. 5 would create more home ownership opportunities by increasing the sale of existing homes as previous owners move on.

“It would be a generous thing to say that Prop. 5 has anything to do with addressing the housing crisis,” Chris Hoene of the California Budget and Policy Center told Capital & Main. “The Realtors Association has tried to say that this will help with housing mobility but the economists and the housing experts agree that it won’t.”

Media representatives for Prop. 5 did not respond to requests for interview or to e-mailed questions.

But its failure might have been predictable–any campaign strategist will tell you it’s easier to get voters to mark “no” when confused or unsure. The industry itself didn’t mount much of a campaign, qualifying the measure but then evidently leaving it for dead to concentrate money on defeating Prop. 10.

A slew of editorials in papers from the Los Angeles Times to the San Francisco Chronicle to the San Jose Mercury News castigated Prop. 5 as bad policy.

Real estate interests evidently anticipated Prop. 5’s electoral failure—in October the Secretary of State’s office cleared a modified version of the 2018 model for circulation for the 2020 ballot. It’ll have company: A 2020 measure, potentially threatening to real estate interests, seeks to assess commercial and industrial property taxes at current market values rather than keeping them at low Proposition 13 levels.


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