I want to alert my readers with an update to yesterday’s post on Xcel’s friendly relationship with our state legislature. Amy just posted on our Environmental Policy blog new evidence of an even further deepening love affair between Xcel and our lawmakers. As if we needed anymore proof, now we’ve got it.

What’s worse than corporate interests cozying up to the legislature to secure protection and taxpayer handouts? A state-sanctioned monopoly doing that. Our environmental policy czarina Amy Oliver Cooke calls out Xcel and our state legislature for being BFFs (that’s Best Friends Forever for those of you without teenagers at home) in this new Environmental Policy blog post. Amy took a look at Xcel’s stance on the bills going through the legislature this year and found that essentially, whatever they oppose gets killed and whatever they support goes through. It’s as if lawmakers under the gold dome are playing the part of Jim Carrey in Yes Man. Whatever Xcel wants, it gets.

This means that us ratepayers are footing the bill for this love affair. When Xcel wants to squash bills that improve transparency or protect ratepayers, they simply give the word and it dies.

Most interesting are the 14 bills Xcel opposes, including pro-consumer legislation such as transparency on ratepayers? energy bills and reducing energy costs through utilization of a ?least cost principle.?… Under the leadership of Speaker Frank McNulty (R-Highlands Ranch), the House has done its part by killing all seven bills Xcel opposed in that chamber, including HB 1240 which would have repealed Colorado?s carbon tax and restricted Xcel?s rate of return on capital construction.

The Senate under Democratic leader Brandon Shaffer isn’t any better. It has killed five Xcel-opposed bills, including the entirely too pro-consumer ?least cost principle” bill. I have to wonder where the left is in all this. This whole Xcel situation reads like a lefty grievance report for cryin’ out loud. Big bad monopoly? Check. Massive profits? Check. Anti-consumer? Check. In bed with the legislature? Check. “Dirty” energy promotion? Check. Avoiding transparency? You betcha. Where are the cries for consumer protection? Do energy ratepayers not count? Regardless of the silence both sides seem to exhibit on this issue, you can be sure that we will stay on this fight. Check back regularly on our Environmental Policy blog where Amy Oliver Cooke and William Yeatman write regularly on state environment and energy issues. It’s probably the only place you’ll find news and meaningful commentary on this stuff.

The Constitution declares that ?No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.? (Article I, Section 9, Clause 7.) As James Madison explained in Federalist 58, our Constitution is based on the princple that strict controls on spending are necessary to prevent abuses of power. Hence, federal money can only be spent after Congress enacts a bill ordering the spending, and after the President signs the appropriation bill, or Congress votes to override a veto.

Several federal statutes, collectively known as ?The Antideficiency Act,? provide additional safeguards. 31 U.S.C. secs. 1341?42 & 1511?17. The original version of the Act dates back to 1820. Act of May 1, 1820, ch. 52, §6, 3 Stat. 567, 568. The current Act makes it a crime for a federal employee to pay out money without prior Congressional authorization.

In 1990, Congress amended the Antideficiency Act:

An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property. This section does not apply to a corporation getting amounts to make loans (except paid in capital amounts) without legal liability of the United States Government. As used in this section, the term ?emergencies involving the safety of human life or the protection of property? does not include ongoing, regular functions of government the suspension of which would not imminently threaten the safety of human life or the protection of property.

31 U.S.C. 1432. See also 31 U.S.C. 1515(b) (?an emergency involving the safety of human life, the protection of property, or the immediate welfare of individuals.?). The exception does not mean that the federal government may pay for the services, but it does mean that the federal government may incur an obligation to pay for these services later. Attorney General Opinion, August 16, 1995 (Asst. A.G. Walter Dellinger).

According to a continuing legal education document by Kenneth Allen, (FAFL GLASS-CLE 6?1, Federal Publications LLC, available on Westlaw), the following activities may continue even in the absence of an appropriation. First two items which are not part of the 1342 exception: ?National security activities,? and contracts payments from available funds. And under section 1342: ?Medical care of inpatients and emergency outpatient care,? ?Activities essential to ensuring continued public health and safety, including safe use of food, drugs, and hazardous materials,? ?Border and coastal protection and surveillance,? ?Protection of federal lands, buildings, waterways, equipment, and other government property,? ?Care of prisoners and other persons in the custody of the United States,? ?Law enforcement and criminal investigations,? ?Emergency and disaster assistance,? ?Activities essential to the preservation of the essential elements of the money and banking system of the United States, including borrowing and tax collection activities of the Treasury,? ?Activities that ensure production of power and maintenance of the power distribution system,? and ?Activities necessary to maintain government-owned research property.?

 I am not an expert on the Antideficiency Act, but I hope that the above provides a starting point in considering what federal activities might continue in the absence of a continuing resolution. Commenters with expertise are welcome to supply clarifications and corrections.

David Harsanyi is a true contrarian. While recently made up census data shows a mass migration of sensible people from New York to Colorado and the rest of the Rocky Mountain West, David is leaving the Denver Post, packing up his syndicated columnist kit (bottle of booze and a laptop) and heading to New York City. But before he hits I-70 Eastbound, David and host Jon Caldara sat down at the Devil’s Advocate studio for a look back at his nearly seven years at the Denver Post, and a look forward at his new gig in New York. So cancel your plans for this Friday night and tune into Devil’s Advocate at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30 PM.

Our resident legal and constitutional scholar Dave Kopel participated in this incredibly important amicus brief for the 4th circuit court of appeals. The amicus argues that the individual mandate to buy health insurance found in ObamaCare is not constitutional, neither through the commerce clause nor the necessary and proper clause. The brief was filed by the Washington Legal Foundation, in Virginia v. Sebelius. The lead attorney is Ilya Somin, of George Mason Law School. You can read more about Ilya Somin and his writing over at the Volokh Conspiracy law blog where Dave also contributes. I have a strong feeling that this case will be yet another blow dealt to the individual mandate and ObamaCare in general.

What’s a big red calculator? Well, it’s big in the sense that it will not fit in your shirt pocket (sorry geeks). And in the sense that it goes up to 16 digits, which makes it the official calculator of our national debt. Of course, that also explains why it’s red. It is the “largest collection of zeros every assembled!”

So what does a guy or gal have to do in order to win one of these cool calculators? It’s simple really. Log onto Facebook and “like” the Mothers Against Debt fan page. After that you can see and participate in the contest that Mothers Against Debt is running that will enable you to win one of these calculators. As Amy explains,

Mothers Against Debt is running a contest and will give away one BIG RED calculator every week for the next four weeks. And because we are really nice, we have a swag bag of other goodies for you as well. All you have to do is provide an answer to the question of the week in the comment section, and get your facebook friends to “like” your comment. The MAD fan with the most “likes” will win the BIG RED calculator along with a grab bag of other free market swag. At the end of four weeks, the four winners will compete for $100 cash prize. MAD will present a new question each Saturday evening. Voting will be shut down for the previous week’s question with the appearance of the next question. Be creative and pithy with your answer. Or if you just have a whole bunch of friends, convince them to like your comment! We look forward to your answers.

We have just begun this week’s contest, so get in on the action before it’s too late!

Citizens’ Budget project director Penn Pfiffner continues his mission of spreading the good word about the solutions found in our Citizen’s Budget project. This past week found Penn on two different radio shows. The first was on Ross Kaminsky’s Backbone Radio program on KNUS. Filling in for Ross that day was Krista Kafer, who did a great job interviewing Penn on how Colorado can move towards fiscally responsible government. And just this morning we were honored to have Penn on News Radio 850 KOA’s Mike Rosen show. You can hear Penn talk about our current fiscal crisis about a quarter of the way into this audio file of the 9am hour of the show. We want to thank both KNUS and KOA for letting Penn spread the important message that our budget gap is not a “revenue shortfall” as some like to argue. Rather, the gap is fiscally unsustainable and requires structural changes with spending cuts, NOT raises in our fees and taxes.

What’s the state of investigative journalism in Colorado? Tune in to Devil’s Advocate this Friday to find out as I am joined by Denver Post staff writer Chuck Plunkett and Independence Institute investigative reporter Todd Shepherd to discuss the Denver Post’s new political investigative project, the place of new media in investigative reporting, and the benefits and challenges of utilizing the Colorado Open Records Act (CORA). That’s this Friday, January 21 at 8:30 PM on Colorado Public Television 12. Re-broadcast the following Monday at 1:30 PM.

Citizens’ Budget project director Penn Pfiffner has been sending “facts of the day” to our state legislature every morning. These are little informational nuggets that can be found inside our project, but might get overlooked due to the sheer size of our Citizens’ Budget. I think these factoids are great, so I’m sharing the first four days facts with you all:

The State?s budget problem is not caused by an inadequate tax burden. Compare Colorado, which is modestly below the national average for per capita state & local spending, with high-tax states. New Jersey is the highest and New York comes in second in combined tax burdens. Both are in dire crisis; worse than our state. California has issued I.O.U.s due to running out of funds and suffers the 6th highest burden in the nation. Collecting more taxes does not shield a state from budgetary woes, and counter-intuitively, even appears to exacerbate them.

The Children?s Basic Health Plan (CBHP) began as a small state program funded by ?gifts, grants, and donations? in 1990. Vigorous enrollment expansion has added to Colorado?s budget woes. From June 2005 to June 2006, enrollment rose 32.4 percent, the largest percentage increase in the country. CBHP has reached the point where half of the households in the state are expected to bear all the medical expenses for the other half?s children.

We recommend that the legislature move to a ?priority-based budgeting? system. It is crucial that the structure for setting a State budget more closely conform to the reality of expected income, not only for the ensuing year but well into the future. Washington State adopted this type of budget reform, and is now being employed in New Jersey to deal with a budget crisis. Washington Governor Gary Locke did not believe his administration or the legislature could or should figure a way to raise enough taxes to eliminate the deficit. The figure stood at $2.8 billion in a state only a little larger than Colorado. By utilizing the new method, Washington state was able to close the budget hole without raising taxes.

The College Opportunity Fund program (stipends) should be retained because it forms an excellent base on which to build changes for funding higher education. It must be expanded and modified to conform to the real needs. Funds currently allocated to higher education from the General Fund, and service contract funding, would be used to fund the stipend plan. A goal of stipends is to create competition among all qualified post-secondary institutions. This stipend-based higher education system would create incentives for institutions to deliver quality education at lower cost. Replacing the current system of direct state funding to higher education institutions with a stipend plan funding students and families will generate public support.

The Independence Institute scored an opinion editorial triple-play over the long holiday weekend, publishing articles by three different Independence Institute authors in three different Colorado newspapers over a three day period.

First, check out Senior Fellow Rob Natelson in Saturday’s Colorado Springs Gazette on statist politicians’ highly selective calls for civility. Next, Citizens’ Budget project director Penn Pfiffner has a piece in Sunday’s Denver Post about…you guessed it, the Citizens’ Budget.  Then in Monday’s Colorado Daily, Ari Armstrong explains the economic fallacies behind Colorado’s “new energy economy.”

And as an added bonus, Independence Institute health care blogger Brian Schwartz, who is also on the Boulder Daily Camera’s editorial advisory board, has a piece on “cutting wasteful spending” in Saturday’s Camera.

Jimmy Sengenberger is a blogger, radio host, and podcast maker extraordinaire who hosts a website called the Seng Center. You can also catch his blog posts on PPC. Just the other day on his radio show Jimmy interviewed Penn Pfiffner about the Citizens’ Budget project. Specifically, why this project is so important in light of the $1 billion budget shortfall our legislature will be dealing with this year, and how we can close that budget hole without raising taxes or fees. You can access the interview via podcast here on the Seng Center’s website.