Take back the power to set state fiscal policy
When we were new members of the Colorado legislature in the 1980s and ’90s, we hoped colleagues would see the merit in bills we introduced and, of course, approve them. It didn’t take long to realize that fellow legislators would be more skeptical about our ideas — as we would be of theirs.
Our proposals — often drawn from conversations with constituents — were subject to scrutiny in committee hearings, floor debates and endless conversations with all manner of interested parties.
That challenging and sometimes tedious process demonstrated then, as it does now, the wisdom of the Founders in drafting a constitution that requires every state to have a “republican form of government,” a representative democracy.
The Founders recognized that the public interest is best served when complex and controversial issues receive careful review by representatives who have the time, commitment and expertise to hold hearings, take testimony, examine evidence, debate their differences and work out necessary compromises. That is the way a diverse society with often conflicting interests can resolve difficult issues responsibly and respectfully.
The nation’s Founders expected the states’ legislatures to determine what public needs were essential and how to pay for them. How do we balance Medicaid against building great universities or state prisons? What tax policies will promote jobs or bring relief to those on fixed incomes?
Colorado is the only state that has stripped its legislature of this fundamental responsibility for setting state fiscal policy. The Taxpayer’s Bill of Rights (TABOR) was enacted by initiative in 1992 with the seductively appealing proposition that any tax increase would require approval by plebiscite. Lurking in TABOR’s fine print also was constitutional machinery designed to shrink government at all levels over time.
TABOR has not resulted in less government. Instead, state policymakers, county commissions, city councils and school boards have had to resort to government by gimmick to finesse TABOR’s simplistic restraints and respond to public demands for services.
In the process, TABOR has let state legislators off the hook from making many tough budget decisions and relegated those decisions for each voter to decide individually in the voting booth. Colorado voters do so with up-or-down votes on complicated ballot measures, “informed” by TV spots, and without any requirement to pay attention to the interests of fellow citizens. They do so without the benefit of much debate, much less the demands representatives face: to craft compromises that address competing concerns.
As lawyers, we know lawsuits are not the best way to shape public policy, any more than citizens’ initiatives offer an ideal alternative when the legislature fails to act. But the Constitution does not permit either litigation or citizens’ initiatives to substitute for the core responsibilities of a state’s legislature. When the initiative power is imposed to replace the constitutional requirement for representative government, as TABOR does, litigation may be the only remedy.
The resounding defeat of Amendment 66, a major overhaul of Colorado’s school finance system, is easily explained by the voters’ distaste for raising taxes. It is also worth considering whether voters faced with so many other day-to-day demands can be expected to find time to understand proposed legislation as complicated as Amendment 66.
The defeat of Amendment 66 also suggests that there may be no practicable political remedy for the fiscal straitjacket imposed by TABOR. Two years after TABOR (and ironically because of TABOR’s complexity), voters adopted another amendment that limits future constitutional amendments to a single subject. The Colorado Supreme Court has ruled that TABOR deals with several subjects. Thus, it probably would take a series of initiated constitutional changes to undo TABOR.
Facing this challenge, a bipartisan coalition of former and current legislators, elected officials, educators and citizens have brought suit in federal court challenging the legality of TABOR. The lawsuit is not an attack on the citizen initiative process, as opponents have guilefully tried to argue. It is, rather, an effort to enforce what the Founders intended by the guarantee in Article IV of the U.S. Constitution: that every state should have a “republican form of government.”
We think that a “republican form of government” necessarily includes a legislature with adequate power to raise the money to meet the state’s needs. The check against any abuse of that power comes every time legislators face the voters on Election Day.
Threshold procedural issues in the lawsuit are now being reviewed by the U.S. Court of Appeals for the 10th Circuit. A trial on the merits may follow, with additional appeals likely. In the years it will take the case to be decided, Colorado will be constrained by a law that undermines the basic principles of representative government. In the meantime, we can brace ourselves for more campaigns that will attempt to substitute slogans for the deliberative process of the state legislature.
David Skaggs and Mike Feeley lead teams from their two law firms in representing the plaintiffs challenging the constitutionality of TABOR in Kerr vs. Hickenlooper. Skaggs served in the Colorado House from 1981 to 1987, and Feeley in the Colorado Senate from 1993 to 2001, each as minority leader in their respective chambers.
Read more: Should TABOR be dismantled? Yes – The Denver Post http://www.denverpost.com/opinion/ci_24623839/yes-take-back-power-set-state-fiscal-policy#ixzz2mGtNkvDZ
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