How are we so sure civil unions will pass this year?

January 10, 2013 | 1:21 pm
(Updated: February 22, 2013 | 5:42 pm)

After the dramatic way Colorado’s civil unions ended in 2012, it’s reasonable for people to doubt a Colorado civil unions bill will really make it to the governor’s desk this year, where Gov. Hickenlooper has promised to sign it into law.

But barring circumstances far more unlikely than the drama that defeated civil unions in 2012, the 2013 bill will pass.

Last spring, a civil unions bill won bipartisan support in both chambers of Colorado’s legislature, first passing the Democratic-controlled Senate then passing three GOP-controlled House committees and reaching the House floor with enough supporters to succeed there. But GOP leadership orchestrated the bill’s defeat in a way that LGBT advocates, nonpartisan supporters and even many Republicans found shocking: With moments to spare, GOP leadership declared the House in recess, and left it adjourned until the state Constitutional deadline for bills had passed for the year. They killed the bill by denying it a vote.

When Gov. Hickenlooper called a special legislative session to re-introduce the bill, this time GOP leadership sent the bill to a different committee than it had gone to before. Anyone’s best guess is that all the Republican-majority members there had privately promised they’d vote “no.” And they did.

How do we know this time will be different? Civil union supporters have expressed assurances, publicly and privately to Out Front, now that Democrats have taken control of the House. But our reporting warrants a better explanation. This is why observers can be confident:

(For the basics of Colorado’s legislative process, a state website explains steps a bill takes becoming law and a simple description of how legislative committees work is here.)

First: Majorities in the House and Senate are sponsors of the bill

Senators and representatives who personally introduce a bill are called its prime sponsor. Prime sponsors decide what they want their own bills to do and say, and advocate for them throughout the process. After a bill is written, its prime sponsor can ask other Senators and Representatives to sign on as co-sponsors – a strong gesture of support for the bill that goes beyond just planning to vote for it. Being co-sponsor means taking symbolic ownership of the bill and lending one’s own status and respect to it.

Every Democrat in Colorado’s House and Senate, plus one House Republican, are co-sponsors of SB13-011, the 2013 Colorado Civil Union Act. That’s an overwhelming sign they’ll all vote for it, and there are more of them than there were last time around. The bill will probably get additional votes from Republicans who aren’t co-sponsors – just like the 2011 and 2012 bills did – but since Democrats are now the majority in both the House and Senate, and therefore on every committee, the civil unions bill would pass even if it doesn’t get a single vote except from sponsors!

Second: Civil Unions finally has a Republican House sponsor

Speaking of co-sponsors. In 2012 when Republicans had a slim majority in the House, proponents of the Colorado Civil Union Act were desperately searching for a House Republican sponsor, which would lend “bipartisan” credibility to the bill, discourage GOP leadership from killing it procedurally and make individual House Republicans who are on the fence about civil unions more willing to vote for the bill since it would belong to a member of their own party. They couldn’t find a Republican sponsor in 2012, but this year GOP Rep. Cheri Gerou is a co-sponsor.

That means Republicans who silently support the bill have less interest in making a political calculation to oppose it thinking they’ll force Democrats alone to take the heat from conservative voters. Theoretically, even the Republicans who secretly want civil unions to pass could sit back and say “since Democrats have the majority now, let them take the heat themselves by passing it without Republican votes.” That kind of political move has happened in legislatures from the U.S. Congress down, especially when a party has sour grapes about doing badly in a still-very-recent election. But now that civil unions is a “bipartisan” sponsored bill, a party-line vote is off the table and more Republicans can vote their conscience. It’s likely a few will join Democrats voting for civil unions.

Third: Democrats have an obvious political interest in civil unions

Democrats capitalized on the rage that erupted after Republican House leadership killed civil unions in 2012, using it to raise funds and rally votes. Though there’s no way to measure exactly how much of Democrats’ Nov. 2012 election vote was because of civil unions, Democrats sailed to victory winning every competitive state House race in Colorado and re-claiming a strong state House majority. In the mean time, Coloradoans have elected 8 currently-sitting openly-LGBT legislators – all Democrats – and Democratic House members chose a gay colleague, Rep. Mark Ferrandino, as their House Speaker – indicating where they truly stand on LGBT rights.

That all brings a tremendous mandate and a tremendous responsibility to Democrats, makes it obvious that civil unions at least doesn’t hurt Democrats, and entails a tremendous political liability if Democrats were to somehow stop civil unions from passing. They’ve promised to pass a civil unions bill, they want to pass it – we know they’re all on board because every one of them is a co-sponsor – and they now have the ability to do so with no one to stop them.

Of course, Democrats also have a moral interest and personal desire to pass civil unions. Rights for minorities, and LGBT relationship recognition, are central to what motivates many Democrats in public service in the first place. But even if an observer takes a cynical perspective towards partisan positioning, there’s no political reason why Colorado’s Democrats would stop this train.

Fourth: House Speaker Mark Ferrandino is introducing the bill in the House

We learned in 2012 how much power the majority party’s leadership has over bills. It’s not just a stronger ability to persuade colleagues how to vote. Each party’s leadership controls which party members sit on what committees, and leadership of the majority party controls which committee a bill goes to. Leadership can send bills to certain committees where they know loyal partisans will kill the bill, or to committees where they know it will pass. The majority party also controls the calendar and the pace a bill advances.

Rep. Ferrandino, who is gay and personally introduced Sen. Steadman’s Senate bill into the House in 2011 and 2012 and will do it again in 2013, is now in the singular most powerful position to see to it whether any bill makes it through his chamber. He’s the only one who could possibly block civil unions in the House, but he wouldn’t since it’s his own bill.

What’s left that could stand in the bill’s way?

A Democrat could announce changing her or his mind on the bill

As difficult as it would be to switch a current position on an issue when your caucus is otherwise unanimous, it’s possible. But currently, Democratic majorities in the House and Senate are strong enough that a Democrat could defect and the other votes would still be on the floor to pass the bill – and also through all the House committees, where Democrats have at least a two-vote advantage. Democrats have a 37-28 majority in the House and a 20-15 lead in the Senate.

Multiple Democrats on one committee could announce changing their minds on the bill

As unlikely as it would be for multiple Democratic defections over civil unions to be members of the same committee, it probably wouldn’t end the chance for civil unions in 2013. If a Democrat who is a crucial committee vote were to change her or his mind on the bill, it’s likely she or he would be persuaded by colleagues to at least pass the bill through committee so that it could get a full vote on the House or Senate floor – something that legislators often do for bills their colleagues want a chance to vote on.

If it seemed like that would be an impossible compromise for the individuals who changed their minds to vote for the bill, the bill could end up going through different committees than it did in 2012 since Democrats control each legislative chamber and therefore the route bills follow.

A Democrat could change her or his mind secretly, then unexpectedly vote against the bill in committee

One surprise “no” vote would be made up for by the other Democrats on a House committee, since they currently outnumber Republicans by two votes there. In the Senate, where that is not the case, the situation would be more dramatic – but answered in the following question.

Feb. 11 Update: Now that Civil Unions has passed the Senate, a lone defection on a committee couldn’t stop the bill, since Democrats’ House committee majorities are by at least two members.

Two Democrats on one committee could change their minds on the bill, at least one doing so secretly to then unexpectedly vote against the bill in committee

This is theoretically possible, but very far-fetched. A Democratic legislator – who is therefore currently a co-sponsor of civil unions – who switched sides on the issue at the last minute in a way that killed the bill would be perceived as committing more than an honest change of heart. She or he would face the full force of anger from the LGBT community and allies, face lost support from progressive activist groups, face a potential primary opponent in 2014, and face the ire of every one of her or his colleagues. It would make for a rough session ahead, and a rough re-election, without gaining much support from the Republican Party which is still going to run its own candidate in the next election.

Even if that all happened, civil unions supporters have a chance that a supportive Republican would make up the lost vote. But it’s extremely unlikely that a bill as high in profile as civil unions could lose key support without leadership knowing about it – it would be a shock that a legislator would turn so suddenly and so heavily against LGBT rights that she or he would be willing to commit political suicide to stop the civil unions bill.

A Democratic legislator could switch parties

Party defections from Democrat to Republican have happened before. But it would take several defections for Republicans to take control of either chamber of the legislature – and that’s unlikely now that the risk of Tea Party primaries against moderate Republicans makes it harder for a Democrat-turned-Republican to retain her or his seat as a Republican. It would be beyond unusual for enough defections to happen over the course of just a few weeks as the civil unions bill moves through the legislature, since the elections are still fresh and politicians don’t want to turn so quickly on the constituencies that elected them, and Democratic majorities in each chamber are by multiple seats.

Multiple Democrats on a committee could get sick and not show up for a vote, giving Republicans an effective majority there

We hear this is a worse-than-average flu season, but this speaks to one of the advantages of being in the majority party that controls the whole legislative process. If a crucial supporter won’t be present for a committee vote, then the hearing – or just the vote itself – could be postponed by the Democratic committee chair until the members return.

Multiple Democrats on a committee could die or resign

Even in a scandal, resignations are usually postponed until after the legislature adjourns. But Colorado provides for outgoing legislators to be replaced by a vacancy committee controlled by their political party in the district where they’re from – a Democrat would replace the Democrat who left. In the mean time, party leadership would replace the empty seats in the committee.

A Democrat could accidentally vote “no” in a committee vote when she or he meant to say “yes”

Believe it or not, there are examples when legislators have accidentally been crucial votes passing a bill they meant to oppose, and now that Amendment 64 has passed in Colorado, who knows what state of mind our elected officials will be in. But killing a bill in committee is done in two steps – there’s a motion to refer the bill to the next committee or to the full House or Senate, which means to pass the bill, and if the committee votes against passing it and wants to reject the bill there will be a separate motion and vote to kill the bill.

If a Democrat were to accidentally make the wrong vote on a motion to refer the bill and that resulted in the motion failing, it wouldn’t actually kill the bill – it simply decides not to pass the bill at that moment. The committee – which is going to be controlled by Democrats – would have the ability to just redo the vote.

A group of Democrats could decide civil unions isn’t enough and they’ll vote against any bill that isn’t full marriage equality

Legislators who support LGBT rights understand that the state’s Constitution – which they cannot change – limits “marriage” to a union between a man and a woman, requiring them to offer relationship protection to same-sex couples with civil unions instead. Beyond that, the bill’s prime sponsors, Sen. Pat Steadman, Sen. Lucia Guzman, Speaker Mark Ferrandino and Rep. Sue Schafer are gay themselves, highly-respected in the LGBT community as well as in the legislature, and send the message that voting for civil unions supports equality and protects same-sex couples since more is not possible right now. The leading LGBT advocacy and activist groups in Colorado support the civil unions bill too.

Voting against civil unions from a pro-equality perspective may be understandable, but it would still draw more anger from the LGBT community as a whole than it would bring appreciation, so it probably won’t be appealing to very many Democrats – especially now that they’ve all already agreed to endorse the civil unions bill.

Governor Hickenlooper could get struck by lightning

We’re only mentioning this because a reader specifically brought it up. Gov. Hickenlooper has pledged to sign a civil unions bill and specifically called for civil unions to pass in two different State of the State Addresses. If he were struck by an uncommon January lightning bolt – lets say this particular lightning bolt causes Gov. Hickenlooper to suddenly realize he’s spent his life on the wrong path and he resigns to move to Vail as a ski bum – he would be replaced by Lieutenant Gov. Joe Garcia, who also supports civil unions and would sign the bill.


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