TABOR haters’ lawsuit feigns concern for representative democracy

Aug 16, 2012

Peter Blake / Colorado News Agency

Put baldly, here’s what the plaintiffs in the federal suit against TABOR are saying:

The citizens of Colorado violated their own federal constitutional rights when they approved a state constitutional amendment 20 years ago that gave them the authority to vote on proposed tax hikes.

You’re not that smart! You don’t know budgeting! Leave taxes to your legislative betters!

“I cannot bring myself to believe the U.S. Supreme Court is going to come to that conclusion,” says Attorney General John Suthers, whose office is defending the Taxpayer’s Bill of Rights.

But the high court may have to end up taking the case. It’s Plaintiffs 1, Citizens 0 right now.  Two weeks ago Denver U.S. District Judge William J. Martinez ruled that the 33 plaintiffs, or at least some of them, did in fact have standing to sue.

Suthers had argued that TABOR is a political question beyond the reach of the federal courts, and that the plaintiffs hadn’t suffered any injury anyway.  But the federal courts are finding less and less beyond their reach these days.

It will be months before the merits of the case will be tried before Martinez.  But if Suthers gets his way, they won’t be.  He’s asking the judge to permit an interlocutory appeal on the standing issue to the 10th Circuit Court of Appeals.  The odds are against him.  The plaintiffs are resisting such a move and the judge is likely to turn him down.  In that case, Suthers can appeal the standing issue along with everything else if the judge rules in favor of the plaintiffs at the full trial.

The plaintiffs’ chief claim is based on Article IV, Section 4 of the U.S. Constitution, which says, “The United States shall guarantee every state in the union a republican form of government…”

What “republican” means has never been settled.  The plaintiffs argue that it gives the power to govern, and especially the power to tax, to elected officials—although they don’t have the courage to suggest that all initiatives are unconstitutional.  After all, 26 states permit some form of direct public law-making.

Suthers argues that “you don’t have to dig very deep” to discover the Founders’ intent in prescribing “republican” government.  “They were concerned about lingering monarchical tendencies,” he said. “They were afraid that after a couple of years the Virginia folks might say, ‘This legislative stuff is messy.  We need to have a king of Virginia.’ ”

“Republican” government may require representative government, but that doesn’t mean it prohibits some direct democracy.

Here’s another question: If it’s the United States that is pledged to “guarantee” the states a republican form of government, why are the plaintiffs suing John Hickenlooper? It’s the federal government, not the governor, that has allegedly failed to do its duty and thus should be the defendant.

Suthers said the state raised that point in its reply briefs but the issue wasn’t addressed by Martinez.  It will be raised again in any future appeal.

Former Congressman David Skaggs, an attorney for the plaintiffs, argued that the governor was named because he would be resisting the suit, even if it’s a federal responsibility.

The plaintiffs maintain that TABOR has led to “a slow, inexorable slide into fiscal dysfunction” in Colorado.

That’s not an argument they may want to pursue very far.  California, Illinois, New Jersey, Michigan, New York and many other states where legislators handle the taxes are in much worse fiscal shape than Colorado.

The plaintiffs include just five sitting lawmakers, and they are the only ones to whom Martinez granted standing.  The others, mostly Democrats, are local and school board officials, former legislators and some ordinary citizens. The judge said it wouldn’t be necessary to determine their eligibility to sue.

Does that mean that if the plaintiffs win, TABOR would still require public tax votes in school-district and local elections?  “An interesting question,” said Suthers.  The plaintiffs sued only for the right of legislators to raise taxes.  The limits TABOR puts on annual revenue growth may still stand, he said.

Skaggs disagreed. If his side wins, he said, TABOR couldn’t be enforced at any level of government, not just the state.  That’s because of the “interplay” between revenue raising and appropriations among state and local governments and school districts.

But that issue will certainly be debated at the trial on the merits.

The plaintiffs are seeking extra time “for discovery and disclosure,” attorney Mike Feeley told The Denver Post.  Suthers figures this means they want to marshal more liberal lawmakers “to rant and rave” about how they hate TABOR’s effect on Colorado’s finances.

The state, of course, will be able to counter with numerous lawmakers who favor TABOR.

It’s no surprise the plaintiffs went to court to overturn TABOR instead of asking the voters to do it.   The right to vote on taxes remains very popular with the people but not with judges.  The state Supreme Court hates it, and has gone out of its way to undercut several of its provisions. …read full column

Veteran Colorado political columnist Peter Blake writes weekly on state issues for the Colorado News Agency.

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