TABOR lawsuit is about irritation over citizens’ right to vote on taxes
If you hadn’t heard, some folks last month filed a lawsuit to declare the Colorado Constitution unconstitutional. Not all of it mind you, but I bet you can guess what part of the Colorado Constitution is causing heartburn for former legislators and other public spending addicts. OK, I probably gave it away, but, of course, it’s the Taxpayers Bill Of Rights portion of the Colorado Constitution.
So some folks who don’t like TABOR, along with an extremely well-heeled and politically connected Denver law firm, have filed an action in federal court asking that the TABOR Amendment to the Colorado Constitution be declared void, because they think it violates Article IV section 4 of the United States Constitution.
This is sometimes referred to as the “guarantee clause” because it states that, “The United States shall guarantee to every State in this Union a Republican Form of Government.”
The framers were obviously not referring to a yet-to-be-created political party, but a system of government. The group filing this lawsuit under the caption of Kerr v. Colorado — Kerr being a former state legislator and Colorado apparently being us if we voted for TABOR — conclude that requiring a vote of the people to increase taxes robs the state Legislature of power that is intrinsic to a republican form of government.
The plaintiffs here are a legion of the left, with a few Rockefeller-type Republicans thrown in for seasoning. (If you’re not familiar with the Nelson Rockefeller version of Republicanism — good.) This group is apparently not satisfied with the de-boning of the TABOR Amendment the Colorado Supreme Court has already delivered and, fearful the people will never vote to lose the power, have decided to go to the federal bench.
The first problem they run into is that no one is completely certain about the details of what encompasses a republican form of government. While the complainants throw in a few pieces from the Federalist Papers, they leave out a lot of discussion from various framers, such as John Adams and Thomas Jefferson, who seem to have moderately differing ideas of what the phrase means.
The generally accepted widescreen idea is that the phrase is a version of representative government that both prevents a tyranny of the majority by direct democracy or the establishment of an autocracy. This is just a jumping off place for the plaintiffs in this matter however, as their whole point seems to be that TABOR ties the hands of elected officials from doing important things, like raising taxes.
In court, this kind of filing is called a complaint, and in this case it is especially true because it is less argument than criticism. For instance, it says, “since the passage of TABOR in 1992 the state of Colorado has experienced a slow, inexorable slide into fiscal dysfunction. Deterioration of the state’s funding base has been slowed by many attempts to patch, cover over, or bypass the straitjacket of TABOR.”
So if I read this right, a state that can do a multitude of things, including attaching the death penalty to a criminal act, is not strong enough unless it has the ability to raise taxes without asking voters.
This whole exercise seems more a publicity stunt than legal battle, since research one could do on a smartphone during a coffee break would show this issue is pretty much settled law.
The first time someone asked the courts to decide this “guarantee clause” type of question was 1848, in a case called Luther v. Borden, where two groups of people in Rhode Island each claimed to be the state government, which seems like a real problem. The Supreme Court said questions arising under this clause were political questions and should be resolved by Congress.
The last time this came up was 1912, in Pacific States Telephone & Telegraph v. Oregon. It specifically addressed the initiative process by citizens. Pacific States apparently argued that lawmaking was the exclusive prerogative of the legislature and not found in referendum or initiative. The Supreme Court denied jurisdiction 9-0 and said the matter was political, not judicial.
What this hubbub does highlight is the extraordinary irritation that asking taxpayers before raising their taxes causes to certain types of politicians and bureaucrats. That knowledge is a good thing.
Rick Wagner offers more thoughts on politics at his blog, The War on Wrong.