Colorado Legislators Eye New Pro-Liberty Laws

The Colorado Freedom Report:  A libertarian journal of politics and culture.

The Colorado Freedom

Colorado Legislators Eye New Pro-Liberty Laws

by Ari Armstrong, January 1999

The 1999 legislative session of the State House may have a more noticeable libertarian bent, thanks to the election of several liberty-friendly politicians. Penn Pfiffner returns as the favorite son of free marketers. Two newly elected Republicans join Pfiffner -- Shawn Mitchell of Northglenn and Scott McKay of Lakewood. Ron Tupa, a Democrat from Boulder and by no means a libertarian in his politics, nevertheless earns honorable mention for opening up the Colorado ballot to the Libertarian Party and other small parties.

Other state representatives not mentioned here may well support pro-freedom legislation regularly. Their exclusion is a matter of time constraints only. State legislators who consider themselves pro-freedom and pro-market are encouraged to write CFR and describe their record and ideology, for publication.

Penn Pfiffner

Pfiffner, elected in 1992, now enters his last term in the State House. The good news for free marketers is that the State Senate seat in Pfiffner's area opens up at the conclusion of his term in the House. The legislator is "certainly considering" running for that seat.

Pfiffner earned his undergraduate degree in economics and political science at the University of Colorado at Boulder. After a stint in the Navy, he earned his masters in finance at Auraria (the University of Colorado at Denver). Since winning his seat in the House, Pfiffner has been perhaps liberty's best friend in the Colorado legislature.

"I aspire to be the most limited-government, libertarian-leaning member" in the House, Pfiffner said. I was surprised he even evoked the term "libertarian," given that it is sometimes used as a misleading or negative label in popular politics. (Tom "I'm Not a Libertarian" Tancredo comes to mind as one who shies away from its use.) It was heartening to hear a market-oriented politician stand his ideological ground. Pfiffner was a member of the Libertarian Party for about a decade before joining the Republicans.

Pfiffner offered an encouraging view of the progression of the state legislature in the past decade to a more libertarian perspective. Back in 1992, noted Pfiffner, only four or five House members regularly voted for limited government. Pfiffner's Democratic opponent in 1994, Fran Yehle, made much of the fact that Pfiffner had voted alone 38 times. More recently, Pfiffner said, "it's darn near impossible for me to vote alone," given the addition of more market-leaning members, including Jim Congrove (now in the State Senate) and Mark Paschall. "This year, we've added a half-dozen more" pro-freedom members to the House, Pfiffner said.

Of course, Pfiffner is constrained by the need to win votes. While he always votes his conscience, he said, he also "holds back" on some issues. For instance, while Pfiffner might otherwise be interested in looking at reforming victimless crimes, "District 23 wouldn't support major changes in that area," so he hasn't pursued the issue.

One law Pfiffner is particularly proud of is House Bill 1262, now phasing in, which moves Colorado state employees from automatic pay raises to performance-based pay. Pfiffner believes the merit system will create incentives for government workers to do a better job. This is an excellent idea, but of course the real libertarian solution to the problem is simply to drastically reduce the number of state employees from the 27,000 Pfiffner cites (plus another 20,000 in higher education). The potential number of lazy, inept, or corrupt State officials is limited, after all, to the total number of State officials.

My ears pricked up when Pfiffner mentioned his "privatization commission." Of course, what he meant was the State contracting out jobs. Pfiffner mentioned automotive repair (for the Department of Transportation), printing, custodial work, and computer technology in particular. For me, "privatization" is reserved to mean the shifting of power from the political sector to the private or voluntaristic sector. For instance, education would be privatized if the government stopped regulating it and stopped funding it and the voluntaristic, cooperative market system took it over. A job is not private if it's paid for by the State.

However, that semantic pet peeve of mine aside, if the government insists on doing something, it might as well do it by contracting out the work. Pfiffner claims inspiration from the Indianapolis Model, home of the "yellow pages test" -- if a service is listed in the yellow pages, there is no need for the government to offer the service itself. Of course, the ultimate libertarian goal is not to have the State contract out jobs, but to have it stop doing jobs altogether. I would like to see the yellow pages test, divorced from its reliance on State funding, taken to its extreme -- education, police protection, roads, and charitable organizations are all listed in the yellow pages.

In 1996, Pfiffner got a law passed that requires criminals to pay restitution to their victims for damages. Now this is a great idea, even if the law is limited by geography. The law includes provisions to garnish wages. Pfiffner holds what seems to me a balanced view of crime: "I don't defend the criminal, but I also believe that a person is innocent until proven guilty."

Pfiffner has sometimes deviated from conservative causes during his stay in office. In the 1995/96 session, Pfiffner caught some flak for opposing a measure by Doug Dean to turn sex-education in government schools into a religion-based abstinence program. While Pfiffner was quick to point out the social problems caused by sex-education which encourages promiscuity, he doesn't believe that the religious alternative should be enforced in the schools. "A pox on both your houses," is his take. The responsibility of educating children about such matters "belongs to the parents, not to social engineers" of any stripe, said Pfiffner. (Bravo!) Previously, Pfiffner opposed a censorship bill.

One matter on which Pfiffner toes the conservative line is same-sex marriages. To me, the issue of whether Colorado licenses marriages between homosexuals matters but little, as I don't think the State should be involved in licensing marriages in the first place. The anti-homosexual bias bound up with parts of this movement bothers me, though.

Pfiffner looks forward to sending laws to Bill Owens rather than to Roy Romer. Pfiffner anticipates the passage of a concealed carry law, measures against regulatory takings, the work of his "privatization" committee, and deregulations of transportation (for taxis in particular).

Pfiffner predicts the Republican government won't pass socially conservative measures, excepting perhaps a ban on same-sex marriages. "Abortion will be left alone," he said.

Highway bonds may be pushed by Republicans, which Pfiffner sees as problematic. "Government should be pay-as-you-go," he said. Also, Owens may not be able to stop increased State intervention in child care, Pfiffner fears. He cited the possible expansion of Romer's so-called Bright Beginnings program, in which state officials can interfere with child-rearing. (Maybe they could call an expanded program Authoritarian Beginnings.)

Longer-term projects Pfiffner hopes to see accomplished are bills against property seizures and for education tax credits. There have been "blatant abuses" of property seizures in Colorado, said Pfiffner. The ability of law enforcement agents to confiscate property without a trial creates "all the wrong incentives" for the enforcers.

The main issue over which I disagree with Pfiffner is education tax credits. He believes we should "hold our noses" and take the "intermediary step" of credits. "We've got to separate the Statists from kids," he said. I agree with this sentiment, but I believe that education tax credits will serve to increase the control of the State over our children.

Curiously, Pfiffner and I took the opposite sides of the drinking age issue last year: I argued that even restricted drinking at age 18 would be better than nothing, while Pfiffner argued against the regulated status of the right. On education, he calls for an "intermediary step" which I oppose. The principle is that a new law should increase freedom and not decrease it, but sometimes the application of this principle to particular laws is subtle or even ambiguous. Pfiffner seeks out the pro-freedom course, and so deserves the admiration of libertarians.

Shawn Mitchell

Mitchell grew up in Southern California. His mother, a Mormon but a fan of Ayn Rand, would question her son about the beliefs he picked up at school and elsewhere concerning the necessity of a welfare-state. As young as first grade, he said, he was exposed to the notion that the forcible redistribution of wealth is a bad thing.

Mitchell attended Brigham Young University as an undergraduate and then moved on to the University of California at Berkeley to study law, where he graduated in 1990. He was a member of the Federalist Society in law school.

Mitchell moved to Colorado with his wife after picking up his law degree. (His family is now six children strong.) He worked for a couple of Denver law firms before joining Gale Norton in the Attorney General's office for two and a half years, where he drafted legislation to prevent regulatory takings and defended Amendment 2 in the State Supreme Court (a more difficult issue ideologically). He expressed interest in supporting another takings bill at some point. We spent a few minutes on the phone trying to make sense of some of Norton's recent actions, such as the tobacco settlement, given her sometimes-libertarian background.

After leaving Norton's office, Mitchell returned to a law firm before entering private practice. Now he is attempting to balance his legal work with his transition to the State House, something that keeps him working late.

Mitchell cites Frederic Bastiat's The Law as a major early intellectual influence. He was taken with Bastiat's notion that the government has no right to perform any actions other than those an individual has the right to perform. However, it seems this principle can be ambiguous in its application; I noted to Mitchell that he seems to accept a more activist role for government than most libertarians would like. For instance, Mitchell, while aware of the problems caused by the drug war, is still unconvinced that legalization is the answer. On the other hand, he expressed interest in supporting legislation which would limit property seizures absent a trial, and he is concerned about the devastation of civil liberties wrought by the war on drugs.

Mitchell is also familiar with a number of pro-market economists, such as Friedrich Hayek (he cited The Road to Serfdom in particular), Ludwig von Mises, James Buchanan (the Nobel-winning Public Choice scholar), and Milton Friedman.

So is Mitchell more conservative or more libertarian? "When I'm arguing with my parents, I'm more libertarian," he said, "When I'm arguing with my daughter, I'm conservative." His stances on gun rights, regulatory takings, and taxes fall in line with libertarian doctrine. On the other hand, his views on drugs and school vouchers lean conservative. (He seemed surprised to hear me blast voucher proposals.) He's what I usually think of as a market-conservative, someone who is basically pro-market but who cozies up to the State on some social issues. This is in sharp contrast with state-conservatives such as Pat Buchanan, who seem willing to sell out power to the State at every turn.

Mitchell is reserved and reflective when it comes to his new political office. "I don't want to go off half-cocked," he said, explaining that he wants to earn a reputation in the House and spend more time researching the issues before making big waves. "I'll probably be pretty quiet this first session," he added.

I asked him if he expects to experience tension between his ideals and the pressures of holding Republican office. His answer was sensible: the need to win votes might affect what he spends his time fighting for, but "it won't change any of my votes." He offered the example of professional licenses. Mitchell would favor doing away with mandatory licenses for all fields except perhaps medicine, including those for taxis, cosmetologists, and plumbers, so long as practitioners fully disclosed their lack of license, but this is not an issue he expects to take up anytime soon, if at all.

Mitchell is "mostly hopeful and optimistic" about having a Republican governor lead a Republican legislature. He believes that Owens will be inclined to push through pro-freedom legislation more readily than Romer. I asked him if he worries about new paternalistic measures passing; he replied that he didn't expect such problems. He's probably right; laws on abortion (which is an ambiguous matter for libertarians anyway), laws on drugs, laws on gambling, and so forth aren't likely to get any more restrictive than they already are.

What struck me about Mitchell is his forthrightness, uncharacteristic of most politicians. If he disagrees with you, he'll say so, and he'll explain why. If he's having trouble deciding an issue, he'll admit his difficulty in a genuine way. For Mitchell, the morality and practicality of law always trump opinion polls. Or at least such is my impression -- I expect he'll have many years in office to prove me right.

Scott McKay

I called McKay on the advice of Shawn Mitchell, who suggested that McKay is libertarian-leaning in his political philosophy. I'm partially convinced. On the one hand, he says that "less government is better" and that people "should keep more of their own money." He's also good on gun rights. On the other hand, he calls himself a "Republi-tarian," a cross between a Republican and a libertarian, or what I might call a "market-conservative." He noted that he helped close a government-run day care center in Jefferson County, but then he added that private facilities pay taxes, whereas government ones don't. I become suspicious whenever a politician claims as a motivating factor the ability to increase the tax base.

McKay has worked for Coors for 21 years (according to his web page), and he earned his B.S. in Business Administration at Regis in 1991 with minors in economics and Spanish. His father was a Wisconsin Democrat until 1964, when he backed Goldwater. "Politics was always a dinner-time subject," said McKay.

Ron Tupa

I first met Ron Tupa when he introduced legislation last year (the 1998 session) to lower the drinking age in Colorado back to 18 (with certain restrictions). I spoke in favor of the bill for Tupa's committee, where it did surprisingly well (even though it failed), given the fact that Federal dollars are tied to the higher drinking age. Tupa is contemplating offering a resolution on the matter this coming session.

Tupa is best known in libertarian circles for making ballot access easier for third parties. Now the Libertarian Party can place candidates on the ballot without having to go through the arduous petition process, which in the past has eaten up valuable campaign time and dollars. The legislation has also benefited the Greens and the Natural Law Party.

However, while Tupa has done much to help libertarian causes with his ballot legislation, he is himself far from libertarian in ideology. He had two main legislative goals when entering office: ballot reform and campaign finance reform. While a libertarian case could be made in favor of limiting campaign spending, most libertarians see spending restrictions as bad.

Tupa summed up his political views nicely: "Sometimes government can be a bad thing," but "we need most of the government programs the libertarians want to gut." This is curious in that the best way to reform campaigns would be to divest politicians of their power. Tupa is worried about the Republican-controlled government. "This is not the time for someone who's politically active to jump ship," he said about the need for him to stay involved. Whereas Shawn Mitchell stressed his involvement with writing legislation to limit regulatory property takings, Tupa emphasized his worry that Owens might pass such legislation.

Tupa's father was in the military, so young Ron moved around a lot. He attended college at the University of Texas at Austin and then moved to Colorado in 1991 to earn his teaching certificate. He was appointed to the State House for the 1995 session when Dorothy Rupert was appointed to the Senate. He also teaches social studies in Boulder Valley (as a substitute this year). Tupa can run again in 2000 before hitting his term limit.

The Colorado Freedom