'76 Blog

To: Justice Anthony Kennedy **From: Coloradans for Benevolent Despotism **Re: Enough with the Uppity Teabaggers ** (Denver Post, May 29) Tony, can we use first names? You have your dignity to think of, U.S. Supreme Court and all that – but we have a spending racket to sustain, so here goes.  Let’s drop the formalities and lay it out candidly.  Barring a Wikileak, this won’t be in the papers anyway. It was a banner week in Colorado for all of us who know what’s good for the public better than the public themselves.  With the filing of Herb Fenster’s federal lawsuit to declare the Taxpayer’s Bill of Rights unconstitutional, we may see the end of 20 long years of politicians having to ask citizens for permission to tax them.  The galling indignity of it all!  As a fellow member of the enlightened elite, Mr. Justice, you’ll sympathize. TABOR, as the tax limit added to our state constitution by voters in 1992 is called, is alleged by wild right-wingers like House Majority Leader Amy Stephens to have protected Colorado from unchecked spending and California-style deficits.  Is she delusional?  TABOR’s “bad consequences for economic development and education” are notorious, as true Republicans like former Sen. Norma Anderson can attest. But we both know money isn’t the real issue here.  The issue is position and power.  Who knows best?  Who are today’s philosopher kings?  As a judge, you see one every time you look in the mirror.  We 34 plaintiffs in the Fenster suit sense in ourselves the same superiority.  Why else would the common folk have elected us to state, county, and local offices, school boards, RTD?  Born to rule, all of us – weren’t we, Tony? Never mind if the district court and the appeals court laugh at our looney legal theory that Article IV, Section 4, “guarantee(ing) to every state in this union a republican form of government,” disallows the taxpayer a chance to vote on how much of his hard-earned money the government can take.  Eventually it will come before the Supremes.  When it does, since you’re the swing vote out of nine, please do the right thing. Save us from the voters.  Please.  Deliver us, rescue us, spare us, Mr. Justice, from a miseducated (with too few teachers, overworked, underpaid), misinformed (with too little public broadcasting), stingy, stubborn, selfish, skeptical, bigoted, unwashed, unruly, SUV-driving, Fox-watching, gun-loving, greedy, grasping, holy-rolling, hard-hearted, ditto-headed citizenry who don’t understand that everything belongs to us – except what little we let them keep. The reason our anointed guild of educators and legislators, incumbents and used-to-be’s, frank Dems and faux GOP, formed Coloradans for Benevolent Despotism is that it has gone really sour between us and the electorate.  They no longer do our bidding.  Arnold and Maria aren’t more estranged than we and those uppity teabaggers. We’re not quite saying one man, one vote, one time – the way Mubarak did things – but honestly we’re sick of the sheep having so much control over their own shearing.  “One man, one vote, pony up, and shut up for two years,” would suit us fine.  Hence Fenster, unsupported though he is by the Founders or case law. So we’re counting on you, Antoine old buddy.  Understand?  The high court can be our Seal Team Six in black robes – except we only need five to win.  Yourself plus Breyer, Ginsburg, Kagan, and Sotomayor (“wise Latina” is just another way of saying philosopher queen, after all) will stop all this excessive democracy.  No more voting on taxes, California here we come, party on, woo hoo!      

(Centennial Fellow) Because those doggone Coloradans just won’t vote to increase taxes often enough, a cadre of folks who just can’t bear to see state government spend less is asking a federal judge to do something voters won’t – to strike down voters’ constitutional right to approve tax increases. Led by Democrat State Rep. Andy Kerr, plaintiffs contend that the Taxpayers Bill of Rights (TABOR) in the Colorado constitution violates the U.S. Constitution’s guarantee that all states have a “republican form of government.” Don’t think that the plaintiffs have become orthodox disciples of James Madison.  They’re just sick and tired of state government being forced to tighten its belt during a recessionas ordinary Coloradans must do.  They’d rather raise our taxes and hope we’ll forgive or forget before the next election. The complaint claims that it’s permissible for citizens to vote on regular ol’ laws – but not on limiting government’s power to tax or spend.Without the power to tax and spend, the legislature is little more than a debating society, suggests Kerr, who is joined by Democrat legislators Sen. John Morse, Rep. Claire Levy and Rep. Dickey Lee Hullinghorst. That’s quite a stretch given that the Founding Fathers explicitly placed severe restrictions on the legislative branch that they created (see The Bill of Rights). Congress wasn’t even authorized to collect an income tax until 1913 when the people and the states passed the 16th Amendment. Even more absurd is the proponents’ one-sided view of what citizens may be allowed vote on.  Although they rant against “direct democracy” as an imposition on legislature’s authority to tax and spend, they suspiciously ignore the numerous spending mandates that voters have approved. For most of the 31 plaintiffs this is not a principled lawsuit –not a testament to the superiority of representative government over direct democracy, but a convenient argument concocted to dismantle the most effective spending limitation in the nation. Consider: • For 101 years, the Colorado constitution has provided voters with the unrestricted right to change state laws, including the constitution. • For18 years, TABOR has given voters the last word on tax increases and has limited the growth of government spending. Never before has anyone argued that these provisions somehow run afoul of the federal constitution. TABOR doesn’t impose a “straightjacket” on the legislature, as plaintiffs claim; it requires that lawmakers must ask the people.  But Colorado voters aren’t pushovers.  Since TABOR passed in 1992, voters have approved four of 16 measures to increase taxes or modify spending limits. Referendum C, passed in 2005, has enabled the state to spend an additional $4.5 billion over the past six years and eliminated the perverse incentive to prop up spending in order to preserve maximum spending authority for subsequent years. Still Democrat lawmakers — with a wink from the state Supreme Court — have routinely skirted TABOR’s limitsby raisingmore than $1 billion from higher property taxes, vehicle registrations, hospital “fees” and assorted other taxes without once asking voters for permission. The dirty little secret is that TABOR isn’t the problem – unless you want to balance the budget by raising taxes.  State spending for 2011-12 is $1.2 billion below the TABOR/Ref C limit.Erase TABOR completely and the state would not have one more dime to spend unless legislators taxed us more. “Colorado government has a revenue shortfall because Colorado families and businesses have a revenue shortfall,” reminds Senate Republican Leader Mike Kopp, who opposes the lawsuit. Indeed direct democracy has created its share of problems (e.g., no one is accountable when voters pass initiatives that just don’t work out), and we’d be better served by less of it rather than more. However, the way to correct course is for lawmakers to re-gain the voters’ trust (as Democrat former Speaker Andrew Romanoff tried to do)and to stop surreptitiously passing taxes and fees. Asking a federal judge to tell us that certain subjects are too important for us to contemplate will only make voters more cynical. Mark Hillman served as Colorado senate majority leader and state treasurer.  He is now a Centennial Institute Fellow.