Anti-TABOR lawsuit is cynical slap at voters

(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 recession as 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.

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