Mar 13

Can the U.S. Government Declare a State Constitution ‘Un-Republican’?

A lawsuit challenging Colorado’s Taxpayer Bill of Rights raises uncomfortable questions about federalism and the Constitution’s Guaranty Clause.

The Colorado Capitol in Denver (Wikimedia Commons)

The Constitution is full of inconvenient provisions. Gun-control advocates struggle to explain the Second Amendment; those favoring federal power must wrestle with the Tenth: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Here’s a puzzle for the “states’ rights” and “state sovereignty” crowd: the “Guaranty Clause,” Article 4 § 4, which binds the federal government to “guarantee to every state … a republican form of government.”

That clause, like a dormant volcano, rumbled last week in a courtroom in Denver. The sound should worry those who think state prerogatives trump those of the nation.

Since the earliest days of the republic, this clause has been interpreted to mean that when Congress recognizes a state government and admits its members to Congress, it is implicitly finding the state’s government properly “republican.” In fact, when admitting new states to the union, Congress has for more than a century placed in the statute wording finding that the people have adopted a “republican form of government.” Continue reading

TABOR may force Colorado to refund excess marijuana money to taxpayers


DENVER — Tax revenues from Colorado’s new recreational marijuana industry are pouring into state coffers — and that’s actually a bit of a problem for lawmakers.

Taxpayers, however, may stand to benefit if lawmakers decide to refund the tax revenue that comes in above last year’s $67 million first-year estimate.

According to a legal analysis conducted by the state and obtained by FOX31 Denver, the marijuana revenues are subject to the state’s Taxpayer Bill of Rights (TABOR), which will require lawmakers to take action if tax revenues from the new legal marijuana industry exceed the estimated $67 million in annual revenue that was anticipated in the 2013 Blue Book analysis of Proposition AA, the new sales and excise tax rates voters approved in November.

The legal memorandum from the Office of Legislative Legal Services was sent to members of the Joint Budget Committee Monday night.

The report, obtained by FOX31 Denver, is the result of more than a week of legal analysis aimed at providing some certainty to the unanswered question of what happens if revenues come in above that $67 million estimate.

The most current Dept. of Revenue estimate forecasts that the state will take in $107 million, exceeding the Blue Book estimate by some $40 million.

The conclusion: the state must lower the tax rate and either refund the excess amount of revenues above the $67 million estimate or refer a measure to the November 2014 or 2015 ballot seeking permission from voters to let the state keep and spend all of the tax revenue from recreational marijuana.

“It’s very difficult to figure out what the actual amount of marijuana tax revenue is going to be,” said JBC Chairwoman Crisanta Duran, D-Denver, who notes that the state will update its revenue forecast,including marijuana tax revenue projections, on March 18.

“Ultimately, one way or another, the people of this state are going to have a great say about how this extra money is spent. We have to follow TABOR and either take the decision back to the people of Colorado and ask them to keep these dollars or we have to make a refund.”

Rep. Cheri Gerou, R-Evergreen, also sits on the JBC but, unlike Duran, doesn’t see a referred measure to the November ballot as a real option.

“I think probably what’s going to happen is that, internally, the state will try and take care of it,” Gerou said. “I think it’s going to be a bit of a black eye if we have to go back to the voters with another amendment. Continue reading

Dec 29

OUR VIEW: Elitists go after TABOR

December 28, 2012

The Taxpayer’s Bill of Rights exposes elitism in its most outspoken critics. Listen to them as some celebrate and others mourn 20 years since voters amended the Colorado Constitution to give the governed control of their government. Some who dislike TABOR believe the governing class knows what’s best for everyone else, as others believe state government should spend without constraint.

A front-page article in the Sunday Denver Post quoted Larimer County Commissioner Steve Johnson, a Republican who travels the country to warn other states against enacting TABOR-like limits on government.

“One of the years I was in the Legislature, we were refunding over $900 million to taxpayers at the same time we were making cuts,” Johnson said. “I didn’t want to see them (other states) make the same mistake that Colorado did.”

It is a “mistake” that voters chose to reduce the size and cost of government, but Johnson never explains exactly how voters were mistaken. Given that voters have the easy option of amending their constitution, and have chosen to keep TABOR for 20 years, it doesn’t seem like a “mistake.” Maybe, just maybe, a majority of voters wanted cuts in state programs and a $900 million return of their hard-earned cash. The money belongs to the governed. The state government and its services belong to governed and are under their control. Politicians work for constituents, not the other way around. If voters want a small government that does almost nothing, it is their right. Johnson complains that state spending, as a portion of personal income, has dropped from 6.7 percent in fiscal 1993-94 to 3.9 percent today. Continue reading