HJR 1023: Colorado lawmakers’ constitutional ignorance on display

• April 9, 2025
• Rob Natelson

This article first appeared on April 9, 2025 in Complete Colorado.

To understand why some members of the Colorado legislature are unworthy of your trust, look no further than their current effort to take away your state tax refunds and abolish your right to vote on taxes, spending, and debt.

An astounding 44 of 100 lawmakers are sponsoring House Joint Resolution (HJR) 25-1023. This resolution would spend tax dollars on a lawsuit to void the Colorado Taxpayer’s Bill of Rights (TABOR). Coloradans voted to add this valuable protection to the state Constitution in 1992.

I’ve listed the sponsors at the end of this column, so you can see who they are and what districts they so poorly represent. I’ve also included a link so you can see their party affiliation and email addresses and another link so you can find whether you live in any of their districts.

HJR 1023 displays both disdain and greed. But in this column. I’ll focus on two other displayed characteristics: One is deep ignorance among the sponsors. The other is a dull refusal to take even the easiest steps to cure that ignorance.

The problems in HJR 1023 begin in its preamble—a list of “Whereas” clauses. It reads in part as follows:

• “WHEREAS, The “Enabling Act of Colorado” required the territory of Colorado to adopt and maintain a constitution that adopted the constitution of the United States and was “republican in form”; and
• “WHEREAS, Under the Guarantee Clause of section 4 of article IV of the United States constitution, “the United States shall guarantee to every state in this Union a republican form of government”; and
• “WHEREAS, The drafters of the United States constitution envisioned the guarantee of a republican form of government entailing a representative democracy in which legislative bodies determine policy by enacting laws through deliberation and compromise; and
• “WHEREAS, [TABOR] removed fundamental legislative authority and power in matters of revenue and expenditure from the institutions of representative democracy, namely, the General Assembly and the policy-making bodies at all levels of local government, and instead subjected that authority and power to direct democracy, namely, plebiscite; and
• “WHEREAS, [TABOR] has removed necessary and essential powers of its representative institutions and so deprived the state of a republican form of government . . . .”

The proposed resolution goes on to authorize a legislative lawsuit to void TABOR as unconstitutional.

 Legislative ignorance

The first “Whereas” clause is a harbinger of ignorance to come. While purporting to quote the name of the Colorado enabling act, it gets the name wrong. (The actual name was “An Act to enable the people of Colorado to form a constitution and State government, and for the admission of the said State into the Union on an equal footing with the original States.”)

But let that pass.

The second “Whereas” clause misunderstands the purpose and effect of the U.S. Constitution’s Guarantee Clause. The rest of the preamble claims plebiscites are inconsistent with the republican form of government.

I’ll say more about the Guarantee Clause and the meaning of “republican form” in a later column. At this point it is sufficient to note that (1) the sponsors’ claim that plebiscites are unconstitutional already has been rejected by both the U.S. and Colorado Supreme Courts, and (2) the assertion that plebiscites are un-republican is particularly bizarre because plebiscites were both invented and perfected in governments universally acknowledged to be republican.

The plebiscite (Latin: plebis scitum) was central to the Roman republic—which was, of course, the longest lived republic in recorded history (509 – 27 BCE). Plebiscites were further developed in Switzerland, a country universally termed republican.

All three kinds of plebiscite—initiative, referendum, and recall—are recognized in parts of the current Colorado Constitution, outside the Taxpayer’s Bill of Rights. The constitutions of 48 other states recognize one, two, or all three forms of plebiscite.

Did the sponsors of HJR 1023 bother to check into any of this?

And did they bother to check to see what the Colorado Constitution had to say about legislative control over finance when that document was formally recognized as “republican?”

Some history

The Colorado Enabling Act was a congressional statute passed on March 3, 1875. It laid out the conditions by which the territory of Colorado could become a state. It is true that the enabling act required, consistently with the U.S. Constitution, that any proposed state constitution be “republican in form.”

Accordingly, a state constitutional convention drafted a new basic law for Colorado, and the voters ratified it. On August 1, 1876, President Ulysses S. Grant, pursuant to the authority given him by the enabling act, certified that “the fundamental conditions imposed by Congress . . . have been ratified and accepted” and that “the admission of the said State into the Union is now complete.”

This was official recognition that Colorado’s constitution as adopted in 1876 was “republican in form.” The sponsors of HJR 1023 implicitly admit this. But what they didn’t know—and didn’t bother to check—is that the document then imposed far more financial restrictions on the legislature than TABOR does. In fact, one reason TABOR was necessary was because some of the original restrictions had been weakened or abolished by amendment or by judicial error.

The financial restrictions in the 1876 Constitution were the product of hard experience. Earlier in the 19th century, state legislatures had been corrupted and had engaged in massive overspending. During the 1840s, several states even went bankrupt.

Constitutional restrains on government

Let’s look at some of the ways the Colorado Constitution then restricted what the sponsors of HJR 1025 are pleased to call the “fundamental legislative authority.”

As originally adopted, the Colorado Constitution—which, remember, everyone agreed complied with the “republican form”—contained restrictions on state taxation far more extensive than those imposed by TABOR. Specifically:

*          It limited the legislature to property taxes only. It did not permit income taxes or other levies (art. X, § 3). By contrast, TABOR permits a range of levies, stipulating only that income taxes must be imposed at a flat rate.

*          The Constitution capped property taxes on a steadily-decreasing scale of mills per dollar of assessed valuation. In other words, as the amount of property rose, the constitution required taxes to be reduced.  Lifting the cap required a vote of the people (art. X, § 11)—that is, a plebiscite. Unlike the Constitution’s original terms, TABOR does not require tax cuts.

*          The Constitution prohibited the legislature from taxing certain kinds of property and from exempting other kinds of property (art. X, §§ 4-6). Mines could not be taxed for ten years (art. X, § 3). TABOR says nothing on the subject.

*          Revenue bills had to begin in the house of representatives (art. V, § 31) and the general assembly could not delegate the taxing power (art. V, § 35).

This concededly “republican” state Constitution also featured numerous restrictions on legislative appropriations and spending:

*          The legislature was required to maintain a balanced budget (art. X, §§ 2 & 16).

*          Members of the legislature and state officials were denied certain salary increases (art. V, §§ 6 & 30).

*          The legislature was prohibited from passing a long list of “local” or “special” laws (art. V, § 25).

*          The legislature was forbidden from increasing the pay of state employees or contractors, once the contract was signed (art. V, § 28).

*          Many state contracts were subject to competitive bidding (art. V, § 29).

*          Appropriations to non-state entities were prohibited (art. V, § 34).

*          The legislature’s power to invest funds was limited (art. V, § 36).

*          The legislature was prevented from cancelling certain debts (art. V, § 39).

TABOR, by contrast, merely enacts limits on overall spending, from which voters may opt out.

The constitution as ratified in 1876 and approved as “republican in form” also imposed restrictions on the ability of state and local governments to incur debt. These restrictions also were tighter than those in TABOR. Specifically:

*          Article XI limited the dollar amount of debt, the ratio of debt to property valuation, and the purposes for which money could be borrowed. It also prohibited the legislature from repudiating debt.

*          Debt limits for the construction of public buildings could be lifted only by a plebiscite (art. XI, § 5). Other limits could not be lifted at all.

*          County debt was tightly constrained, although some constraints could be lifted by plebiscites (art. XI, § 6).

*          Similar debt constraints, also with provisions for plebiscites, were imposed on school districts (§ 7) and cities and towns (§ 8).

In sum: The state Constitution as ratified in 1876—which everyone admits was “republican”—restricted legislative financial powers a good deal more than TABOR does. The sponsors of HJR 1023 could have learned this with a minimum of effort. But they couldn’t be bothered.

The sponsors

Forty-four lawmakers are on record as wanting to waste public money on hiring lawyers to sue to take away your TABOR refunds and deprive you of your right to vote on financial issues. Here are their names and the districts they represent:

In the House:

Jennifer Bacon, HD 7

Andrew Boesenecker, HD 53

Kyle Brown, HD 12

Sean Camacho, HD 6

Michael Carter, HD 36

Chad Clifford, HD 37

Monica Duran, HD 23

Cecelia Espenoza, HD 4

Meg Froelich, HD 3

Lorena Garcia, HD 35

Lindsay Gilchrist, HD 8

Eliza Hamrick, HD 61

Jamie Jackson, HD 41

Junie Joseph, HD 10

Sheila Lieder, HD 28

Mandy Lindsay, HD 42

William Lindstedt, HD 33

Javier Mabrey, HD 1

Matthew Martinez, HD 62

Karen McCormick, HD 11

Jacque Phillips, HD 31

Manny Rutinel, HD 32

Gretchen Rydin, HD 38

Lesley Smith, HD 49

Rebekah Stewart, HD 30

Tammy Story, HD 25

Brianna Titone, HD 27

Elizabeth Velasco, HD 57

Jenny Willford, HD 34

Steven Woodrow, HD 2

Yara Zokaie, HD 52

 

In the Senate:

Judy Amabile, SD 18

Matt Ball, SD 31

Lisa Cutter, SD 20

Jessie Danielson, SD 22

Lindsey Daugherty, SD 19

Julie Gonzales, SD 34

Iman Jodeh, SD 29

Cathy Kipp, SD 14

Dafna Michaelson Jenet, SD 21

Kyle Mullica, SD 24

Robert Rodriguez, SD 32

FaithWinter, SD 25

 

For party information, see the link here. You can find their district boundaries by going here and scrolling down.

 

HJR 1023: Colorado lawmakers’ constitutional ignorance on display – Independence Institute