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TABOR on trial



It's been 20 years since the Taxpayer's Bill of Rights was voted into the state constitution by a majority of Coloradans. And now, it appears, opponents of this controversial amendment will have their day in court.

"We brought this suit because TABOR is unconstitutional on its face," says state Senate Majority Leader John Morse, an El Paso County Democrat and one of the plaintiffs in the case.

In essence, the plaintiffs in Kerr v. Hickenlooper argue that by removing the ability of the state Legislature to enact tax increases, TABOR violates the federal Constitution. A July 30 ruling on procedural arguments in U.S. District Court gave the plaintiffs reason to expect a trial, possibly next summer.

"This case is so ludicrous it would be laughed out of a law school moot court debate. It's so superficial and silly, and illogical on its surface," says TABOR author Douglas Bruce. "You can't just have a bunch of disgruntled, money-grubbing politicians say, 'Well, we don't like the results of an election 20 years ago, so we want you to undo it.' ... They're just trying to have a judicial activist overturn the votes of 812,308 citizens."

The 'core' issue

At the heart of the plaintiffs' argument is that TABOR violates Article IV, Section 4 of the U.S. Constitution. As Morse explains: "The United States Constitution requires that we have a republican form of government. What's a republican form of government? That's where you elect your representatives, and they make the decisions. They pass the laws. And when you fundamentally undermine that — because the power to tax is the basic power of the Legislature — when you say that you can do everything but that, what you've really said is that you can do nothing. And that's not consistent with republican form of government."

Bruce, who is not involved in the case, argues that the plaintiffs have dramatically misinterpreted the clause's meaning.

"According to them, it means that elected officials have unlimited power. Now a republican form of government, in the late 18th century," he argues, "is to be contrasted with a monarchy."

This is a point that the libertarian-minded Independence Institute takes up in an amicus brief filed with the court, which reads, "None of these Founding-Era definitions contained the least suggestion that a republic had to be purely representative. Indeed, these definitions of 'republic' and 'republican' did not require representative institutions of any kind."

Attorney General John Suthers took a different tack, arguing that the "plaintiffs have failed to provide any legal support for the concept that the ability to raise taxes without first obtaining voter approval is the single 'core power' that politicians must be able to exercise without citizen input in order to maintain a republican form of government."

Suthers' office also claimed that by invalidating TABOR, the courts would set a precedent for undercutting any voter-initiated measure. From the AG's motion: "TABOR is not unique just because it involves citizens exercising taxing and spending authority. Other amendments involving taxing and revenue are exercised by the People." The motion lists Amendment 23 and the Gallagher Act, as well as the 2004 Tobacco Tax, as examples.

Nonsense, says Melissa Hart, director of the University of Colorado's Byron R. White Center for the Study of American Constitutional Law, and counsel of record for another amicus brief.

"That misunderstands the criticism that the plaintiffs have of TABOR," Hart says. "Their complaint is not that this was passed by citizen initiative. Their criticism is specifically that you can't remove the power to vote on revenue increases from the Legislature."

Thick with politics

In the motion to dismiss, Suthers' office said the plaintiffs were arguing a political matter not suited for the courts, and that they had no standing — couldn't prove injuries specific to themselves.

The judge denied this motion.

The above aren't necessarily typical arguments, says Michael Feeley, an attorney representing the plaintiffs. Yet this isn't a typical case.

"There are one or two cases in the history of the country that have come close to the arguments that are presented here, but nothing on point," he says. "It's really a unique and novel case, but then again TABOR is unique and novel. No other state has eliminated the legislature's ability to deal with the revenue side of the balance sheet."

When reached for comment, Carolyn Tyler of the attorney general's office only says, "We remain confident that it does not violate the constitutional rights of the citizens of Colorado to let them vote on tax increases."

Morse believes that the state wanted to kill the case early, to avoid an embarrassment.

"We do have standing, we've always had standing, let's get onto the merits of the case," says Morse. "If you can defeat this on a technicality early on, you don't have to deal with the fact that you violated the United States Constitution for a long time. That's bad. And you have a whole political party right now in Colorado that is completely based on an unconstitutional premise."

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