Legislators, other officeholders sue to overturn ‘unconstitutional’ TABOR

The Taxpayer Bill of Rights (TABOR) has been part of life in Colorado since 1992. Today TABOR was tested in court for the first time in Kerr v State of Colorado. Today’s hearing–on a motion by the state to dismiss the suit–may be the end, or it may be the first step in a long hard road.

The 34 plaintiffs, most of them current or recent officeholders, contend that TABOR is unconstitutional because the U.S. Constitution requires that states have a republican form of government as opposed to a direct democracy. Under a republican government, the people elect representatives who pass laws, write budgets and determine tax rates among other things.

Under TABOR, which received 53.7 percent of the vote in 1992, Colorado state and local governments can’t raise tax rates without voter approval and can’t spend revenues collected under existing tax rates without voter approval if revenues grow faster than the rate of inflation and population growth.

Lead plaintiff State Rep. Andy Kerr, D-Lakewood, told the Colorado Independent today that putting virtually every taxing decision in the hands of voters is akin to “saying that every resident should have a vote on every sentence passed down in court.

State Rep. Andy Kerr, D-Lakewood, is suing the state to overturn TABOR. (Image courtesy of Kerr)


“We are asking the court to uphold the constitution. We will find out if the judge thinks triple-felon Doug Bruce (who wrote and led the effort to pass TABOR) knows the constitution better than our founders. Do we really want to let someone who is going to spend the next six months in jail have this much control over the state budget?” Kerr asks.

Federal Judge William Martinez indicated that it might be several weeks before he issues a ruling.

Kerr said that if plaintiffs win, the legislature will “still have to balance the budget every year and if the people don’t like the job we do, they can vote us out.”

Plaintiffs and plaintiff’s lawyers comprise a veritable Who’s Who of Colorado politics. The case was argued today by former Congressman David Skaggs, of McKenna, Long & Aldridge. Other attorneys on the case, all working for free, include Herb Fenster and Mike Feeley, former Colorado Senate Minority Leader, now with Brownstein Hyatt Farber Schreck. The state is represented by the Attorney General’s office.

Plaintiffs include 20 Democrats and 12 Republicans. Besides Kerr, legislators on the suit are Rep. Lois Court, D-Denver; Rep. Dickey Lee Hullinghorst, D-Niwot; Sen. John Morse, D-Colorado Springs; and Rep. Claire Levy, D-Boulder.

While TABOR has been the model for similar measures around the country, even arch conservatives sometimes shy away from such measures. “We should learn from the state of Colorado that experimented with a similar mechanism, an experiment that failed.”, said Arizona Governor Jan Brewer when she vetoed a similar bill.

Plaintiffs point to Article IV, Section 4, of the U. S. Constitution, which says: “The United States shall guarantee to every State in this Union a Republican Form of Government . . . .”

Plaintiffs say that in its 1875 Enabling Act, Colorado set the terms for statehood, including the mandate of the “Guarantee Clause” that Colorado adopt a state Constitution that both endorsed the U. S. Constitution and established a Republican Form of government.

They say The Taxpayer Bill of Rights (TABOR), adopted by initiative, contradicts the Guarantee Clause in removing core legislative powers from the General Assembly. It prohibits the General Assembly from enacting taxes to fund state services and obligations and hamstrings important legislative discretion in several other respects.

From a press release sent out by plaintiffs:

The complaint is brought on behalf of the named plaintiffs against the State of Colorado and asks the Court to find that TABOR violates the U. S. Constitution and federal statute (the 1875 Enabling Act). Because of those violations, the complaint asks the Court to declare TABOR to be unconstitutional, null and void, and to enjoin all state officials from enforcing it.

The Taxpayer Bill of Rights… contains a number of provisions designed variously to eliminate or to severely limit the powers of the Colorado General Assembly and legislative bodies at the local level to raise and appropriate revenues to fund government and meet public needs. The provision most directly at issue in this case, and one which makes TABOR unique compared to limitations adopted by other states, is the complete removal from the Colorado General Assembly of authority to raise taxes.

From the lawsuit:

1. This case presents for resolution the contest between direct democracy and representative democracy. In 1992, Colorado voters adopted by initiative the Taxpayers Bill of Rights (“TABOR”), removing from their own legislature the power to tax and arrogating that power to themselves. However attractive it might have seemed, this assertion of direct democracy is not permitted under the United States Constitution, which requires all states to have a Republican Form of Government embodied in a representative democracy.

2. At our nation’s birth, some three million citizens acted through their representatives at a constitutional convention to commit the nation to a government of representative democracy, a Republic, and rejected direct democracy. Today, the Constitution carries the same commitment in a nation of over three hundred million people.

Frustration with the work of legislatures, whether federal or state, may indicate a need for representative institutions to be more effective, but that frustration does not justify or permit resorting to direct democracy.

3. 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 straightjacket of TABOR.

However, events have demonstrated that a legislature unable to raise and appropriate funds cannot meet its primary constitutional obligations or provide services that are essential for a state.

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About the Author

Scot Kersgaard

Scot Kersgaard has been managing editor of a political newspaper, editor and co-owner of a ski town newspaper, executive editor of eight high-tech magazines (where he worked with current Apple CEO Tim Cook), deputy press secretary to a U.S. Senator, and an outdoors columnist at the Rocky Mountain News. He has an English degree from the University of Washington. He was awarded a fellowship to study internet journalism at the University of Maryland's Knight Center for Specialized Journalism. He was student body president in college. He spends his free time hiking and skiing.

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