August 2015

The Attacks on TABOR Continue

by Amy K. Frantz

Do Legislators have a “Constitutional right to levy taxes and spend money without the people empowered with any veto?”[1]  A group of politicians in Colorado seems to think so, and are continuing their quest to overturn the Taxpayer’s Bill of Rights, or TABOR, from the Colorado State Constitution.

In Colorado, citizens are permitted to place measures on the ballot by initiative petition, and in 1992 the TABOR Constitutional Amendment was adopted by Colorado voters.  TABOR requires majority voter approval to increase tax rates, to take on new debt, or to increase spending more than the rate of inflation plus state population growth.

In the original provisions of TABOR, any revenue collected in excess of the spending limit, plus an emergency relief fund of 3 percent of fiscal year spending, had to be returned to the taxpayers in the form of rebates. However, in 2005 Colorado voters approved a measure to forego the rebates for five years, following a scare campaign conducted by the state’s big spenders that included claims that without passage of the measure “state universities would close, state parks would close, the Veterans cemetery in Grand Junction would close, senior citizens centers would stop serving lunch, some amputees would not be able to get artificial limbs, and programs to prevent teenage suicide would shut down.”[2]

But halting the rebates to Colorado taxpayers was apparently not enough.  In 2011 a “bipartisan collection of 34 sitting legislators, former legislators, former U.S. congressmen, school board officials, local politicians, and other assorted bigwigs of the state’s political class”[3] filed a lawsuit alleging that “[a]n effective legislative branch must have the power to raise and appropriate funds.  When the power to tax is denied, the legislature cannot function effectively to fulfill its obligations in a representative democracy and a Republican Form of Government.”[4]  The plaintiffs in the case were asking the courts to strike the TABOR Amendment from the Colorado Constitution.

The lawsuit slowly made its way through the courts, ending up at the U.S. Supreme Court.  However, in June, the Supreme Court ordered the case back to the U.S. Court of Appeals for the Tenth Circuit in Denver, which had previously sided with TABOR opponents.  The Supreme Court “asked the lower court to re-examine the TABOR case ‘for further consideration in light’ of a ruling [in June] by the Supreme Court in a related Arizona case…which dealt with redistricting.”[5]

So what does the Supreme Court’s decision mean for TABOR?  Rob Natelson, who taught Constitutional Law for 25 years and now serves as Senior Fellow in Constitutional Jurisprudence for both the Independence Institute in Colorado and the Montana Policy Institute[6], had this to say of the Supreme Court’s decision:

The U.S. Supreme Court’s recent order in the case against Colorado’s Taxpayer’s Bill of Rights (TABOR) is a devastating blow to those seeking to overturn that part of the state constitution.  The Supreme Court’s order amounts to a polite directive to the lower court to dismiss the suit…. [T]he justices’ opinions — both the majority and the dissents [on the Arizona redistricting case] — leave little doubt how they would rule on TABOR.  For example, the court granted standing to the Arizona legislature because it was suing as an institution.  But the court carefully distinguished the Arizona situation from cases (such as the one challenging TABOR) in which only a few individual lawmakers were plaintiffs.  The court further observed that, although some Guarantee Clause suits may be justiciable, those that challenge the right of people to vote directly on laws are not.  The court quoted favorably one of many statements by the American Founders (in this instance, Charles Pinckney) acknowledging that direct citizen lawmaking is ‘republican.’  The court expressed concern that voiding a contested voter initiative would cast a shadow over many similar provisions in other states.  Most tellingly, the court praised direct democracy and held that it was ‘in full harmony with the Constitution’s conception of the people as the font of governmental power.’[7]

With the Supreme Court’s order, the case against TABOR remains unresolved for now, but one thing that is clear is that some politicians will stop at nothing to retain their power to tax and spend.  After all, politicians might find it harder to be so generous with taxpayer dollars if they have to ask permission of the taxpayers first!

Amy K. Frantz is Vice President of Public Interest Institute.

The views expressed herein are those of the author and not necessarily those of Public Interest Institute or Tax Education Foundation.  They are brought to you in the interest of a better-informed citizenry.

Endnotes

[1] Paul Jacob, “The People Supreme,” Common Sense, July 10, 2015, <http://thisiscommonsense.com/2015/07/10/the-people-supreme/> accessed July 10, 2015.

[2] Amy K. Frantz, “Colorado Voters Have Spoken,” Public Interest Institute’s LIMITS, December 2005, <http://www.limitedgovernment.org/publications/pubs/limits/limdec05.pdf> accessed July 15, 2015.

[3] Paul Jacob, “People of, by and for the government?,” Townhall.com, May 29, 2011, <http://townhall.com/columnists/pauljacob/2011/05/29/people_of,_by_and_for_the_government/page/full> accessed July 14, 2015.

[4] Ibid.

[5] Mark K. Matthews, “Supreme Court sends TABOR lawsuit back to appeals court,” The Denver Post, June 30, 2015, <http://www.denverpost.com/breakingnews/ci_28407150/supreme-court-sends-tabor-lawsuit-back-appeals-court> accessed July 14, 2015.

[6] “Rob Natelson,” About: Staff, Independence Institute, <http://www.i2i.org/robnatelson.php> accessed July 17, 2015.

[7] Rob Natelson, “Guest Commentary: Supreme Court’s order great for TABOR,” The Denver Post, July 3, 2015, <http://www.denverpost.com/opinion/ci_28424187/guest-commentary-supreme-courts-order-great-tabor> accessed July 14, 2015.