(Denver Post, Apr. 18) “The British are coming,” Paul Revere’s alarm to the Massachusetts countryside on this day in 1775, conveys an urgency you don’t get from the equivalent warning of 2010, “The bankruptcy is coming.”
Fact is, though, fiscal implosion threatens the aging United States of today as grimly as the redcoats threatened the newborn nation of 235 years ago. The question is whether Americans will come awake as the patriots did on that historic night, or sleepwalk into the abyss. I fear for our country, optimist that I am, because the answer is not clear.
To stop blindly expanding entitlements we can’t fund and borrowing what we can’t repay, the country has to snap out of politics as usual. We need a brutally honest self-appraisal, AA-style. The Tea Party movement is doing that, but so far the old-line Democratic and Republican parties are not. America’s genius for self-correction has never been more needed.
We must save ourselves from a terminal case of debtor’s disease state by state, with Washington dragged in last. It will be Massachusetts setting a good example with Scott Brown after setting a bad one on subsidized health care. Illinois passing pension reform while California remains in denial. New Jersey’s Chris Christie stepping up as a budget-balancing governor as our own Bill Ritter whiffs.
In Colorado neither the legislative session nor the election campaign has yet risen above politics as usual. Democrats raised taxes rather than discipline spending. Republicans went for higher electric rates on dubious environmental grounds. Both settled for a bandaid on the PERA pension cancer. The House Speaker favors an ACORN election bill. Bipartisan senators plan another strike at petition rights.
Constitutional amendments initiated by the people, you see, are part of what ails Colorado in the view of some elected politicians. They want to make it twice as hard for you and me to revise our own charter of government. Such restraints on power as term limits in 1990 and tax limits in 1992 couldn’t be so readily imposed in the better future these visionaries offer us. No thanks.
In the US Senate race, meanwhile, Democratic momentum is with Andrew Romanoff, a friend of the big unions that worsen our fiscal and economic woes, and the Republican field is led by Jane Norton, who supported the easy-spending Referendum C back in 2005, sugar for Colorado’s budgetary diabetes. The Democrats’ likely nominee for governor, Mayor Hickenlooper, is an habitual taxer, yet his opponent Scott McInnis won’t sign a no-tax pledge. Come on, friends, pick it up a notch.
My colleague Richard Bishirjian of Yorktown University contends that part of the problem in Colorado is a “brain drain” due to term limits. The deficit I see isn’t brains but backbone – a spine decline. We’re in danger of being systemically corrupted as a whole people, as the Independence Institute’s Dennis Polhill put it.
Today’s imperative – sober up and man up, or the Chinese will own us – is less galvanizing than a midnight cry to wake up or King George will tyrannize us. But make no mistake, freedom is again at a tipping point. The ascent from bondage to faith to courage to liberty, traced by historian Alexander Tytler in the 1770s, tilts quickly from liberty to complacency to apathy to dependency, returning then to bondage. Ask yourself where we are on that scale.
The balance our Founders sought, wrote James Madison, was to “first enable the government to control the governed; and in the next place oblige it to control itself.” Two centuries on, badly under Bush and still worse under Obama, Americans are getting little of the one and way too much of the other. We have to turn this around. Will 2010 be the year?
For producing both material goods and personal fulfillment, economic freedom makes all the difference in the world. One country that proved that convincingly is New Zealand.
Situated in the South Pacific midway between the equator and the South Pole, New Zealand is just two-thirds the size of California and 86 percent as big as Poland. Its 4.3 million inhabitants live on two main islands and a scattering of tiny ones. New Zealanders—known as “Kiwis”—are proud of a long heritage as a British outpost that ended with full autonomy in 1931.
In 1950, New Zealand ranked as one of the ten wealthiest countries on the planet, with a relatively free economy and strong protections for enterprise and property. Then, under the growing influence of welfare state ideas that were blossoming in Britain, the United States and most of the Western world as well, the country took a hard turn toward statism—the notion that government should be at the center of economic and social life.
The next twenty years produced “Kiwi socialism”—a harvest of big government and economic malaise. Increasingly, New Zealanders found themselves victims of exorbitant tariffs, massive farm subsidies, a huge public debt, chronic budget deficits, rising inflation, a top marginal income tax rate of 66 percent, and a gold-plated welfare system.
The central government in those years became involved in virtually every aspect of economic life. It established its own monopolies in the rail, telecommunications, and electric power businesses. About the only things that grew during the period from 1975 to 1983 were unemployment, taxes, and government spending.
With an endless roster of failed state programs and economic ruin staring them in the face, New Zealand’s leaders in 1984 embarked upon what the Organization for Economic Cooperation termed “the most comprehensive economic liberalization program ever undertaken in a developed country.”
All farm subsidies were ended in less than two years. Tariffs were cut by two-thirds almost immediately and have continued to decline; today, the weighted average New Zealand tariff rate is a mere 2.0 percent—virtually unilateral free trade. In fact, most imports now enter the country completely free of any quota, duty, or other restriction.
Taxes were slashed. The top rate was slashed to 33 percent, half of what it was when the big government crowd was in charge.
From the mid-1980s into the 1990s, the New Zealand government conducted a massive privatization effort, selling off numerous state enterprises. Its most dramatic success was the sale of Telecom NZ. Pre-privatization, this state-run communications firm boasted 26,500 employees, many of them in unproductive or do-nothing jobs. Lean, modernized and in private hands, its bloated workforce was subsequently reduced to 9,300 workers and it faced the fresh breeze of competition from other providers for the first time. The country went from antiquated technology to a 97 percent digital system rated second on the planet within a decade by the World Competitiveness Report. Telecom NZ is no longer an annual drain on the public treasury. It actually pays taxes to the government and dividends to shareholders.
New Zealand’s public sector work force in 1984 stood at 88,000. In 1996, after the most radical downsizing of any government anywhere in recent memory, its public sector work force stood at less than 36,000—a reduction of 59 percent.
The country’s banking system is thoroughly deregulated. Other Westerners who have grown accustomed to the thought that government should guarantee their bank deposits might be shocked to learn that in New Zealand, the central government imposes no deposit insurance on financial institutions. Instead, banks provide full public disclosure of their financial conditions and secure whatever insurance they need in the open market.
Establishing a new business in New Zealand was made easy, largely because the few regulations imposed were finally applied evenly and consistently.
What the Kiwis did to change labor policy was especially remarkable. Economist William Eggers termed it “the most aggressive and far-reaching labor market deregulation in the world.” Compulsory union membership was abolished, as were union monopolies over various labor markets. Stripped of special privilege that once allowed them to hold the economy hostage, unions were granted a legal status no different from that of any other private, voluntary association. See this short piece by economist Charles Baird in “The Freeman” about the end of forced unionism in New Zealand in 1991.
The dramatic changes paid handsome economic dividends. The national budget was balanced, inflation plummeted to negligible rates, and economic growth surged ahead at between 4 percent and 6 percent annually for years.
The Left staged a political comeback in the late 1990s and raised tax rates a few points. Economic growth slowed as a result but the basic framework of a liberated economy wasn’t hugely changed.
The Fraser Institute in Canada publishes an annual “Economic Freedom of the World” survey which measures, country by country, the size of government (its taxes, expenditures and enterprises), property rights and legal structure, access to sound money, freedom to trade and regulations of finance, business and labor. The Institute’s latest survey ranks Hong Kong, Singapore, New Zealand and Switzerland, in that order, as the top four countries in economic freedom. The U.S. is 6th and Poland is 74th. Myanmar and Zimbabwe are dead last and, not coincidentally, they are not places to which investors are flocking.
In the rankings of the World Economic Forum’s “Global Competitiveness Report 2009-2010,” New Zealand placed 10th. The world’s most economically competitive country was judged to be Switzerland (the U.S. was second, Poland was 46th).
The World Bank’s “Doing Business 2008” survey rated New Zealand as the second-most business-friendly country in the world and 13th out of 178 nations in the business-friendliness of its hiring laws. The south Pacific nation was also the lowest ranked (meaning the least corrupt) on Transparency International’s Corruption Perception Index for 2009.
The 2010 Index of Economic Freedom (compiled by the Heritage Foundation and the Wall Street Journal) states that in New Zealand, “Starting a business is very easy and straightforward, taking only one day in comparison to the world average of 35 days. Obtaining a business license requires much less than the world average of 18 procedures and 218 days. New Zealand’s labor regulations are flexible. The non-salary cost of employing a worker is low, and dismissing an employee is costless. Regulations on work hours are flexible.”
Moreover, these impressive rankings might soon get even better. After ten years of Left–dominated governments, the generally pro-enterprise National Party, led by Prime Minister John Key, came to power in November 2008. Tax rates are headed down again.
There’s a powerful lesson here: Big Government sucks the life out of an economy. Free markets can undo the damage. Statists of every persuasion, whether they are in Auckland, Washington or Warsaw, would do well to take a close look at the New Zealand model.
I was able to get a high powered, expensive education courtesy of the taxpayers of the state of California. For only pennies on the dollar I got a BA from a Cal State and an MA and a PhD from the University of California. Unfortunately, taxpayers revolted and put a limit on how much the state can tax their property (Proposition 13), so the state now has to rely on other sources of revenue, like income and business taxes. For that reason taxpayers and businesses have fled California for states with lower taxes, as I did by moving to Colorado and not paying back the state for that education though a lifetime of heavy taxation.
Now students of the California university system will be paying higher tuition and are not happy about it. What they got on the cheap, will now cost them more. Now they have taken to the streets, demanding that the state continue to pay for their education, but where will the state get the funds to do so? So far, the State of California has borrowed to make up for the shortfall, since they can’t get away with raising taxes any higher than they already have without having the taxpayers revolt again or abandon the state.
What made that education so expensive? California is very generous to their state workers, which include billions of dollars paid to tens of thousands of people employed by California higher education. What caused their salaries and benefits to be so generous but the strength of the public employees union. It is ironic that one big government socialist scheme (free education) is clashing with another big government socialist scheme (unions demanding exorbitant wages for their members), and both of them clashing with the economic reality that we all live in a world of limited resources and unlimited wants.
Since California is now deep in debt and can’t dig their way out, they want the rest of the country to bail them out. Should the rest of us finance the generosity of California state government largesse? Our politicians promise to fulfill our desires, but can’t do it over the long term without collapsing our economy.
A historical example of this is the collapse of the Soviet Union. Promising to redistribute wealth, the Soviet big government socialists took from the rich, but gave very little to the poor. They eliminated the very people who know how to produce wealth (as Lenin did in the 1920s), leaving only those who know how to redistribute it. Soon they ran out of wealth and had to rely on terror to maintain power (as Stalin did in the 1930s). In order to finance World War 2, they relied on lend-lease from the United States, which provided them with much of the war material to defeat the Germans, then raped the wealth of half of Europe to provide the finances to get them through the 1950s and 60s. By the 70s they again needed to borrow from the West, which got them in debt, and by the 80s could not longer sustain their economy and collapsed.
Governments don’t produce wealth, they only expropriate it from those who are productive, then waste most of it and redistribute the rest. They cannot keep this up in the long term without destroying the very society which supports them, unless they can find others to pay for their generosity, as we are doing by getting China to finance our irresponsible spending, but that can’t last forever. They could also pass their debt on to the next generation, but that won’t work in the long term, and that generation is now protesting in the streets of California at the loss of government largess upon which they have been depending. They could print more money, but in the long run that too would collapse the economy with hyperinflation. The only thing that works in the long-term is fiscal responsibility, but there is no chance of that in our culture of dependence on government and our sense of entitlement without the willingness to pay for it.
Several hundred Coloradans gathered yesterday at the state capitol to remind our government officials that we pay the bills. Sponsored by a coalition of independent but like-minded organizations, including the Independence Institute, the rally vigorously reasserted our role 'as citizen-leaders.
Important points were addressed. Paramount were these messages to our state and federal legislators: Stop irresponsible spending and uphold the values of the citizens you represent. We don't want Obamacare. We don't want nannyism. We don't want economy-crippling taxes and regulation.
Judges too were called upon to be held accountable. Because our state supreme court too often condones the governor's and legislature's uncontrolled spending, shouts of "Clear the Bench" rang out.
Speakers and banners proclaimed that we just want the government to stick to its job and let us manage our lives ourselves. Many protesters waved "Don't Tread on Me" flags and "Taxed Enough Already" posters. Others, including me, sported "I Love TABOR" T-shirts. Defending TABOR, our solitary defense against rampant, ever-mounting taxation, was a primary theme.
Another fiscal-restraint rally is scheduled for April 15th, income tax day. Let's keep reminding them that they work for us. And, if they don't listen, we'll vote them out of office in November.
Randal O'Toole of the Cato Institute, author of the new book Gridlock, spelled out the fiscal folly of Denver's light rail plans at Issue Monday, Feb. 22, hosted by the Centennial Institute at CCU's School of Business. The mounting deficit is obvious as far away as London, where The Economist recently took note of RTD's woes. Yet Denver Mayor John Hickenlooper, now a candidate for Governor of Colorado, continues to brag on the project, as noted in this video report from Kelly Maher of the new website WhoSaidYouSaid.com.
(Denver Post, Feb. 21) Mobilize the militia. Fire up the Humvee. Get down the musket off the mantelpiece. Boulder is preparing to invade Colorado.
Yes, a lawyer from up in the progressive paradise says that your right to vote on taxes violates his constitutional entitlement to ever-increasing teacher salaries and NEA indoctrination of our kids. The invasion is no joke, because Herbert Fenster is a legal heavyweight and his intended enforcer is a robed priesthood answerable to no one. TABOR could be in trouble.
Fenster will ask the courts to strike down the Taxpayer’s Bill of Rights in our state constitution, whereby citizens have the last word on taxes and debt, under his theory that taxation by elected legislators, not you and me, is essential to “a republican form of government” as guaranteed to each state by the U.S. Constitution.
Some theory. Major premise: “The power to tax is the power to destroy,” as John Marshall warned Americans two centuries ago. Minor premise: Colorado’s people, explicitly sovereign under our 1876 constitution, have limited the taxing power with a 1992 amendment. Conclusion, according to Fenster: The General Assembly must be given unlimited power to destroy.
Who is to ax TABOR? Not the ordinary working Coloradans who sweat the jobs that bring the paychecks that yield the taxes that reduce the take-home that feeds the family. That would call for a ballot issue and a campaign, you see. It would require persuading too many selfish folks who don’t realize that others know what’s best for them. Fenster of Boulder would rather just persuade a few enlightened judges.
We could try to antidote this poison cocktail of elitism and illogic with facts. We could bring data to show that tax limitation over the past two decades has helped Colorado’s economy to thrive competitively, while buffering public budgets from the nightmare imbalance of states like California. We could cite studies tracing the dysfunction of public education to structural, not fiscal, causes. But that’s not the real issue.
The issue is whether we’re fit to be free – we the self-assertive and self-reliant Westerners, we the people. Herb Fenster and his liberal posse, decent Americans as best I know, don’t think so. They want the unelected judiciary to take our votes away from us because we’re uncaring toward children. What’s scary is that they may succeed, unless we raise the kind of hell that free men raise when liberty is threatened.
I don’t just mean filing legal briefs. A defense in court will be needed, and TABOR advocates will mount one. Nor do I just mean winning the debate. Montana's Robert Natelson and many other law professors could school Fenster in the constitutional acceptability of “direct citizen lawmaking” in both the Founders’ intent and case law.
But along with all that, we need the tea-party spirit. Absent an aroused and determined citizenry, neither law nor logic nor the majesty of the Supreme Court nor even the powers of Congress are now enough to safeguard limited government, so far gone is the old American republic with its “Don’t tread on me” ethos.
In the Reynolds case of 1964, the US Supreme Court imperially banned state senates from being districted as the U.S. Senate is. Constitutionally unwarranted and outrageous, but we swallowed it. Will the Fenster case tempt the Supremes to a similar tyrannical ban on tax limits? It could – and even if it does not, this should be a wakeup call for patriots.
Those seeking to simply gavel TABOR down will try something else if this fails. They are emboldened and shameless. They evidently believe Dostoevsky was right when he predicted mankind will trade “the ill-fated gift of freedom” for bread and lies. They assume that Tocqueville’s prophecy of “soft despotism” gradually making Americans a nation of sheep has come true. Has it?
Of all the fairy tales that liberal politicians seem to believe — such as man-made global warming or that more government health care spending will reduce the deficit — there one fable they seem unable to comprehend: "The Goose That Laid the Golden Egg."
Most will recall the story of the couple blessed by a goose that each day produced one golden egg and made them rich. Not content with their good fortune, the couple decided to cut the goose open and collect the bevy of golden eggs inside.
Instead, they found that, like other geese, their goose produced just one egg a day, and so by killing her, they failed to realize a bonanza of golden eggs and, or course, killed their goose.
In Colorado, we see the same short-sighted thinking, demonstrated by a legislature and governor who, in order to balance government's budget, chose to impose $130 million in higher taxes on the very businesses whose success is vital to a strong economy.
When minority Republicans argued that raising taxes on business during a recession is counterproductive, they were assailed by Speaker of the House Terrance Carroll, a Denver Democrat, who unfurled this blazing display of pious myopia:
"We're asking big business to pay their fair share so that we don't have to keep balancing the budget on the backs of teachers, police officers and firefighters, senior citizens and the neediest who depend on our safety net."
Speaker Carroll wasn't finished: "It's only the GOP and their special-interest cronies who have been complaining because we're rolling back corporate welfare and special interest tax loopholes."
If sanctimony and economic illiteracy were currency, the Speaker could buy his favorite professional sports franchise.
Where, pray tell, does he think the $7.5 billion in the state's general fund comes from? Overwhelmingly, it comes from businesses that make a profit, pay taxes and employ workers (who also pay taxes) only if they can produce something that consumers will buy. Contrast that with government, which produces nothing that people willingly purchase. That's why government must raise money through taxes and fees.
The state has less money to spend because business receipts are down. When business is booming, businesses pay more in taxes — happily — because sales volume and profits increase. When receipts are down, business not only pays less in taxes, but it spends less on payroll and production.
When government raises taxes during a recession, businesses have no choice but to cut costs further by reducing payroll and other investments that would have generated tax revenue. It's a vicious cycle, and short-sighted tax hikes inevitably backfire on legislators who view protecting government as their first priority.Speaker Carroll and so many of his colleagues seem to believe that Colorado is a government that supports an economy, rather than an economy that supports a government.
Perhaps if the Speaker had ever met a payroll, he would understand why these policies — and his rhetoric — are disastrous.
That's a problem — dearth of business experience — that increasingly afflicts the Democrat caucuses at the State Capitol, hence their view of business as just another "special interest." Democrat legislators' work experience comes predominately from government or non-profit fields that don't rely on their ability to efficiently produce goods or services but on the tax dollars or generosity of those who must.
In the House, 70 percent of Democrats come from government or non-profit fields; in the Senate, it's 57 percent. Among Republicans, only 26 percent of representatives and 28 percent of senators come from a government or non-profit background. (Incidentally, that's counting all attorneys in both parties as private-sector producers.)
Democrat legislators and Gov. Ritter landed in this predicament because they worship at the altar of government. That's why they can't resist spending every dollar they take in during good times, rather than setting some aside for hard times.
That's why, for the past two years, they've ignored pleas to budget cautiously and have made promises to schools and to seniors that they cannot keep. That's why they are willing to see just how much abuse the golden goose can take.
Centennial Fellow Mark Hillman was previously senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com.
('76 Editor) I asked former Treasurer Mark Hillman what sort of genuine PERA stabilization bill he would file if the two of us were still state senators, in light of his concern expressed in the previous post that the current bipartisan Senate Bill 1 doesn't get at the root of the problem. He recommended the following three steps:
* Raise the retirement age to 67 for anyone who hasn't been in a PERA-covered job for more than 5 years.
* Give everyone the option to put their money into a DC plan.
* Put into statute that, from this point forward, if PERA's funds fail to meet the 30-year amortization requirement, that constitutes an "actuarial emergency" and it's up to the PERA board to produce permanent benefit reductions that restore the 30-year amortization schedule.
By the way, Hillman has just published an excellent overview of how Bill Ritter and Colorado Democrats have shredded both the budget and the constitution since 2006. The paper is called "A Billion Reasons Why Colorado Taxpayers Need Protection." He wrote it for the Rocky Mountain Foundation, the new group headed by our friend Tom Tancredo.
There is a consensus that the desperate plight of higher education finances in Colorado calls not for tinkering around the edges but a radical re-examination of basic premises. The traditional solution of “Give Them More Money” is simply not an option given the perilous condition of the state and national economy. One proposal under consideration is the creation of more three-year bachelor’s programs as a means of achieving significant savings for students, parents, colleges, and taxpayers. Before opining on the virtues of this idea it would useful to reflect on where the notion of a “four year degree” came from and also what usages are found in other nations. In 1636 when the Massachusetts Bay Colony established Harvard as America’s first college they naturally looked to Oxford and Cambridge as models, and at that time both institutions viewed four years as a general norm for acquiring a bachelor’s degree. So, Harvard followed suit as did William and Mary (1696), Yale (1702), and subsequently virtually every American institution offering a Bachelor’s Degree. Then in the 17th century the British Parliament- experiencing a “budget gap” – directed Oxford and Cambridge to redesign their bachelor’s programs so that they could be successfully delivered in three years instead of four. Despite some protests they complied and created a highly credible three year bachelor’s program that has served their nation very well ever since. On this latter point I can offer some personal testimony. Following my “four year American degree”,I was a graduate student at Oxford, and the University of London. Any illusion I had that my “extra year” gave me an edge quickly proved unfounded. My relative deficiencies in speaking and writing the Queen’s English and my comparatively shallow store of general knowledge proved conclusively that while I had a longer undergraduate education, my English peers usually had better ones; Ever since I have found the important issue of educational quantity vs. quality to be riveting. Had the United States at least held the line at four years the current financial crisis would not be quite so dire, however as recently reported by Newsweek magazine, the average time of completion for a bachelor’s degree has ballooned to an astounding six years and seven months. For an in-state student at the University of Colorado spending $20,000 annually the difference between four and six and a half years amounts to around $50,000 not to mention the many thousands more that the state must pay in additional higher education subsidies. So, what explains this dramatic expansion of completion time. The reasons are as varied as the students themselves but those most frequently cited are unavailability of required courses, fewer students taking a demanding course load each year, and the attractiveness of the non-academic aspects of college life. The main reason is that higher education authorities allowed it to happen because it greatly increased their revenues and opportunities for discretionary spending. Many years ago a President of Oberlin College- Frederick Jackson Starr- in a much noted speech to college administrators stated that compelling reasons of equity and economics required that U.S. institutions should emulate the rest of the English speaking world and many other countries by making a quality three year bachelor’s program widely available. His peers generally viewed this as heresy and the criticism that descended upon Starr was immense. Similar voices subsequently fell silent. There is no question that the much feared revenue reductions entailed by three year programs could be matched by proportional reductions in expenditures presuming capable management prepared to make decisive choices. Clearly a three year degree is not for most students- for some four years remains a stretch- but simple equity demands that an approach that has long been a successful norm in other countries should at the very least be an option at all institutions offering the bachelor’s program. Today when spiraling higher education costs are breaking the financial backs of many middle class families, and slamming the door outright on countless poor and minority students the existence of a three year option could be the difference in getting or not getting that degree which is an increasingly vital passport to a better 21st century future.
Centennial Fellow William Moloney was Colorado Education Commissioner from 1997 to 2007. His columns have appeared in the Wall St. Journal, USA Today, and the Washington Post.
In an audacious power grab, the Colorado Supreme Court recently embraced, by a 4-3 decision, a judicial doctrine that would relegate the other two branches of government — and the voters — to a perfunctory role.
The high court's activist majority used Lobato vs. State not only to intrude on the legislature's constitutional authority to determine funding for public schools; it also self-servingly suggested that no policy decision is off-limits to judicial review.
So much for separation of powers, consent of the governed, or checks and balances. In fact, the Lobato ruling leads to the obvious question: "What's left to check or balance the court?"
The majority opinion, written by Justice Michael Bender, represented such a stark — and sometimes disingenuous — departure from established precedent that Justice Nancy Rice, who frequently sides with the activist majority, instead joined two originalist justices in dissent.
A collection of school boards and parents initiated the lawsuit in 2005, contending the legislature should increase K-12 education spending by as much as $500 million a year — as if the state could find $500 million under the couch cushions.
Two lower courts dismissed their claims, finding that the state constitution provides no quantifiable standard — other Amendment 23, which the legislature has thus far implemented — to determine funding sufficiency. Thus, the courts ruled that K-12 spending is a "political question" which the constitution specifically places within the authority of the legislature and beyond the court's purview.
However, the supreme court's majority selectively quoted and distorted the law and its own precedent. Even more significantly, the majority argued that courts can render judgments even when the law is silent, provides no quantifiable standard or confers specific authority to another branch of government.
Bender's decision devotes five pages mostly to quote law school textbooks and journals — which have no force of law — to argue that the "political question doctrine … should be abolished."
Incredibly, Bender — joined by Chief Justice Mary Mullarkey and Justices Alex Martinez and Gregory Hobbs — reasons that failure to hear the plaintiffs' claims would "give the legislative branch unchecked power." Is the majority so infatuated by judicial supremacy as to forget that the legislature is routinely checked by the governor's veto and by citizens' initiatives?
In her dissent, Justice Rice demonstrates that a judge can be liberal in applying the law while still acknowledging that even the courts must be constrained: "Chief Justice Marshall noted that without the restraints imposed by the political question doctrine . . . the other departments would be swallowed up by the judiciary."
Rice — joined by Justices Nathan Coats and Allison Eid — argues that, when the constitution says "the general assembly shall . . . provide for . . . a thorough and uniform system of free public schools," authority is clearly conferred upon the legislature and not the courts.
She also scolds the majority for twice distorting the court's 1982 Lujan ruling on school finance.
Bender asserts that Lujan explicitly established the court's authority to review public school finance. Rice corrects the record to show that the Lujan court said, "[O]ur sole function is to rule on the constitutionality of our state's system" (emphasis added) not "whether a better financing system could be devised."
Rice goes one better in dismantling the majority's argument that "the Lujan court engaged in a rational basis review of whether the state's system violated the 'thorough and uniform' mandate." She retorts: "This is simply untrue – the Lujan court never references any test for 'thorough and uniform,' uses the words 'rational basis,' or posits any standard of review."
In fact, the Lujan court left those determinations to the legislature because it was "unable to find any historical background to glean guidance regarding the intention of the framers."
That's the important distinction between originalist judges — who believe their job is to apply the laws as written and to seek guidance from those who authored them — and activist judges — who believe their job is to twist the law to suit their own political agenda and to consult unelected, unaccountable academics for inspiration.
Ironically, Bender, Mullarkey and Martinez stand for retention in November 2010. Perhaps then voters will exercise their own "checks and balances."
Mark Hillman served as senate majority leader and state treasurer. To read more or comment, go to www.MarkHillman.com.