Opinion: Tabor and the Republic


I`ve been involved in local politics for going on 30 years now, and I was under the illusion that there wasn`t much left that could surprise me. But the recent lawsuit challenging the “Taxpayers Bill of Rights,” TABOR, caught me completely off guard.
This lawsuit against the State of Colorado was filed by a group of mostly current and former elected officials. It argues that TABOR violates Article IV, Section 4, of the U.S. Constitution, which in part states that “The United States shall guarantee to every State in this Union a Republican Form of Government.” The lawsuit claims, among other things, that TABOR “compromises and undermines the fundamental nature of the state`s Republican Form of Government.” And “By removing the taxing power of the General Assembly, the TABOR amendment renders the Colorado General Assembly unable to fulfill its legislative obligations under a Republican Form of Government.”
The New Merriam-Webster dictionary defines “republic” as (1) a government having a chief of state who is not a monarch and is usually a president; also: a nation or other political unit having such a government, (2) a government in which supreme power is held by the citizens entitled to vote and is exercised by elected officers and representatives governing according to law; also: a nation or other political unit having such a form of government.”
So the fundamental issue here appears to be whether, under a “Republican Form of Government,” the citizens of a state may initiate legislation or amendments to the state`s constitution, and, in particular, whether the citizens may limit the state legislature`s power to tax.
Strictly speaking, TABOR`s passage did not remove the taxing power of the General Assembly — it did not void existing taxes. But TABOR does require a vote of the citizens to raise tax rates. Additionally, TABOR requires a vote on increasing bonded indebtedness, and it limits both revenue and spending increases. The combination of these last two produces the “ratchet-down,” where if revenue and spending both decrease because of an economic downturn, then when good economic times return, neither revenue nor spending can return to former levels immediately. (TABOR also imposes a number of other restrictions; most restrictions apply to both state and local governments.)
Citizen-initiated legislation has a long history in the United States. In 1910, the voters of Colorado passed an amendment to the state constitution that allowed the citizens to initiate amendments to the state constitution and statutes. Many states adopted similar rules during that time period. Currently, 24 states have some version of initiative and referendum, and 16 states allow directly initiated changes to their constitutions.
Here in Boulder we have a long history of citizens voting on tax increases. In 1967, 25 years before TABOR passed, Boulder citizens voted for an Open Space and Transportation tax increase. And Boulder citizens have not been shy about restricting other powers of their elected officials. For example, in 1959, citizens passed the Blue Line, which restricted the council from delivering city water above a certain altitude, protecting our mountain backdrop.
The lawsuit raises a number of concerns that the proponents would do well to address:
First, have the complainants really thought about what might happen if, improbably, this lawsuit succeeds? Couldn`t it undermine a hundred years of initiatives and referendums in many states? I realize that this lawsuit is tailored to attempt to narrow the issue to just the power to tax. But the U.S. Supreme Court sometimes overreaches (see the Citizens United decision), so the lawsuit could provide a pretext for the justices to attack all of direct democracy.
Second, if the real issue is adequate revenues, why hasn`t the Legislature imposed impact fees for transportation and schools? Impact fees, which cover the costs of infrastructure needed because of new development, can be made exempt from all TABOR restrictions. The money comes from excess profits on land speculation; these exist because development generally doesn`t pay for the costs it imposes. Impact fees could raise billions of dollars a year, relieving a huge portion of Colorado`s financial problems.
Third, if TABOR is such a problem, why not just go back to the ballot? Let the citizens vote on taxes and bonding (as in Boulder), but get rid of the revenue, expenditure, and other limits. These create most of the problems and far fewer people would miss their disappearance.


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