Reflections on 25 years of TABOR in Colorado
Friday marked 25 years since the Taxpayer’s Bill of Rights was added to the Constitution in 1992
• 1992 — Taxpayer’s Bill of Rights amends Section 20 Article X of the Colorado Constitution
• 2000 — Amendment 23 for education spending increases
• 2005 — Ballot measure Referendum C loosens some TABOR restrictions for five years
• 2006 — TABOR measures rejected by voters in Maine, Nebraska, Oregon
• 2011 — State Sen. Andy Kerr and House Speaker Dickey Lee Hullinghorst lead suit against TABOR
• 2014 — Kerr v. Hickenlooper confirms general assembly has standing to challenge the constitutionality of TABOR
• 2015 — U.S. Supreme Court returns Kerr & Hullinghorst case to 10th U.S. Circuit Court of Appeals
• 2017 — House Bill 17-1187 to change excess state revenues cap growth factor introduced
Both Sam Mamet and Larry Sarner acutely remember the moment that the Taxpayer’s Bill of Rights Act was amended to the Colorado Constitution. The difference: One man hated the amendment’s restrictions, while the other saw them as democratically vital.
Friday marked exactly 25 years since the election in which the amendment was added to the state constitution — Nov. 3, 1992. The measure took effect Dec. 31, 1992, and serves as a way to limit the growth of government by requiring increases in overall revenue from taxes not exceed the rates of inflation and population growth.
The amendment stipulates that lawmakers who want to raise taxes or issue debt must first ask voters for permission.
Opinions on the amendment tend to toe party lines: fiscal conservatives tend to laud the restrictions, while fiscal liberals feel they interfere with important public spending.
A TABOR notice went out to all voters eligible to vote on ballot issue 5C prior to the Nov. 7 coordinated election. The ballot measure asks voters who reside, own property or own a business within the Downtown Development Authority boundaries to approve an additional line of credit to the city for use by the DDA for downtown revitalization.
To gain and understanding of the implications and current status of TABOR, the Reporter-Herald interviewed four individuals knowledgable about the amendment on how they feel about it 25 years after its inception.
Mamet, who has served as the executive director of the nonpartisan Colorado Municipal League since 2005, said he strongly dislikes the “fiscal thicket” he says TABOR forces state government to fight through each year.
“TABOR is one of the most seriously damaging things the voters of the state have done to themselves in the last 25 years, in my humble opinion,” Mamet said. “It’s a terrible proposal.”
Mamet highlighted the difficulty associated with removing language from the state constitution after the words have been added.
“Words matter,” Mamet said. “And, when (the amendment) is not clearly written, you have to litigate it.”
To head off this litigation, there have been many attempts to reform TABOR, Mamet said, but they never get very far. In 2005, legislators and then-Gov. Bill Owens let the state government take a five-year time-out from TABOR’s revenue and spending limits via a voter-approved ballot referendum to help the state cope with the 2001-2003 recession.
A new attempt to overhaul TABOR was spearheaded in February by State Rep. Dan Thurlow, R-Grand Junction, and Sen. Larry Crowder, R-Alamosa, with House Bill 17-1187. The lawmakers told the Denver Post earlier this year their goal is to retool TABOR to allow the state to spend hundreds of millions more on high-priority issues like transportation, education and health care by decreasing TABOR refunds to taxpayers.
The bill passed the House and was introduced in the Senate, where it was assigned to the Committee on State, Veterans and Military Affairs and postponed indefinitely, according to a Colorado legislative summary.
“(TABOR’s) become the third rail of politics, unfortunately,” Mamet said.
Sarner is a Loveland resident and TABOR proponent who engages frequently with the Loveland city government on behalf of the citizen voters. Sarner said he thinks the amendment is necessary to protect voters from reckless government spending, but that officials are, in his view, keen to ignore it.
“In the intervening 25 years, it’s just been ‘Let’s fight (TABOR), let’s resist it, let’s ignore it, let’s pretend we can do things that are prohibited,'” Sarner said. “If I have any regrets about this, it’s that we could not get it actually enforced as well as possible.”
An example of “prohibited” actions Sarner references are attempts by governments to bypass the tax collection caps baked in to TABOR by putting the question to voters of whether they might keep and spend the excess tax money, a process known as “de-Brucing.”
“There’s nothing in TABOR that allows de-Brucing to happen,” Sarner said. “Nobody has been able to convince the Supreme Court to enforce TABOR in that regard.”
Indeed, many attempts have been made to litigate TABOR since its inception — the TABOR Foundation, an organization that says its aim is to defend the amendment, lists around 80 cases between 1993 and 2017.
Notably, State Sen. Andy Kerr, D-Lakewood, and House Speaker Dickey Lee Hullinghorst, D-Gunbarrel, lead 33 plaintiffs in a suit against TABOR in 2011 alleging the amendment is unconstitutional because it took power away from legislators to enact tax legislation. The case went before the U.S. Supreme Court before the court passed it back down to the 10th U.S. Circuit Court of Appeals for further consideration, with no action yet taken.
Rep. Penn Pfiffner
The TABOR Committee’s sister organization, the TABOR Foundation, was the original vehicle for getting TABOR amended to the constitution. The foundation is chaired by former state Rep. Penn Pfiffner, a Republican from Lakewod.
“I think it’s evident that TABOR has helped our state by smoothing out the growth in government, and making it far more predictable, and far more reasonable and controlled,” Pfiffner said. “It’s worked very well and should continue to work very well, unless people ignore it.”
And, in his estimation, ignoring it is exactly what many elected officials are attempting to do in order to spend what and when they wish.
“We’ve seen TABOR weakened over 25 years by legislatures and local governments doing exactly that,” Pfiffner said.
Pfiffner said a poignant example of this was illustrated in the lawsuit the TABOR Foundation filed in June 2015 over whether Colorado’s “hospital provider fee” constituted a tax or a fee.
The lawsuit is still pending in Denver County District Court; the decision matters because, were the un-voter-approved fee determined to actually be a tax, it would be ruled unconstitutional due to TABOR.
TABOR’s impact on Loveland specifically became a central focus of the 2018 budget cycle when finance staff discovered incorrectly applied mathematics that resulted in a miscalculation of how much money the city directed each year into its TABOR excess fund, which stores the tax revenue in excess of limits set by TABOR. In the event of a de-Brucing vote, the city is allowed to keep this money.
According to the Reporter-Herald’s reporting on the mistake at the time, money from that account has funded projects such as transportation and other capital improvement projects. As the funds are being reclassified, the City Council will in future have less money to spend in these areas.
City finance director Brent Worthington said that going through the de-Brucing process and getting citizen approval to keep excess revenue helps
“That makes it easier for long-term capital planning and strategic planning, because you’re able to generate a funding force through annual savings for the future,” Worthington said. “That’s the Loveland way, anyway — this is a city that’s always been risk-adverse, never been open to issuing debt.”
Worthington said that throughout TABOR’s lifespan — during which he moved up in his career through the city’s finance department — taking such de-Brucing questions to the voters had been mostly successful.
“Because the debt is for things the community needs,” Worthington said.
Worthington said that the past 25 years have, for him, been an ongoing experience of learning how to manage city finances with the amendment in place.
“The constraints imposed by TABOR are constraints we can work with,” he said.
Julia Rentsch: 970-699-5404, firstname.lastname@example.org