Nicolais: An attack on TABOR could leave Colorado Democrats feeling the squeeze

A court composed of mostly Hickenlooper appointees turns the governor down cold, setting up a possible legislative showdown

PUBLISHED ONDEC 9, 2018 5:55AM MST

Mario Nicolais@MarioNicolaiEsq

Special to The Colorado Sun

Before walking out the door from the governor’s office, John Hickenlooper took one last shot at a Democratic boogeyman. Last week, the Colorado Supreme Court denied Hickenlooper’s parting attempt to undercut TABOR, the conservative taxpayer’s bill of rights enshrined in the Colorado constitution.

Democrats, have long derided TABOR for the constraints it places on government. Not only does TABOR require a vote of the people to approve tax increases, but several of its provisions work in conjunction with other laws to create a “ratcheting effect” on government spending.

Mario Nicolais

If revenues drop during an economic downturn, they cannot return to prior levels as the economy rebounds. Instead, growth is artificially tied to the down year plus a pittance for inflation.

The ratchet works like boa constrictor wrapped around a person. With every breath out, the snake squeezes a little tighter and the next breathe in is a little shallower.

Eventually, no breath can be drawn, and the person dies. I’m sure it delights TABOR’s progenitor, the eccentric Douglas Bruce, to imagine the government being asphyxiated.

Democrats have a little different view; they see a snake crushing the life from Colorado citizens. Gasping for funds no longer available, state and local services wither and waste away.

That leaves Coloradans who rely on those services without recourse. As such, progressives have carried on a holy war against TABOR since it passed in 1992.

Of course, it’s hard to argue against a tag line like “let the people vote.” It’s a classic Catch-22; if you disagree, you must be positively authoritarian. Nuanced arguments like the ratcheting effect don’t make much impression on the populace writ large during our current Trumpian political era.

Consequently, Democrats — buttressed with enough Republicans to label their efforts “bipartisan” — have routinely turned to the courts for TABOR relief.

As Hickenlooper just discovered, courts have provided little solace.

One set of plaintiffs have tromped up and down the federal court system since 2011 arguing that “the TABOR amendment … is unconstitutional because it deprives the state and its citizens of effective representative democracy.” There is an entire website dedicated to the ironically named Kerr v. Hickenlooper case.

The arguments have been up and down through the appeals court so often, it’s hard to keep track of what’s actually happening as the lawsuit got caught in procedural limbo. Just over a year ago, a federal court declared the plaintiffs didn’t have standing.

Maybe to get his name on the other side of the ledger before tilting at presidential windmills, Hickenlooper asked the state’s top court to weigh in on conflicts between TABOR and the Gallagher Amendment, a constitutional provision meant to protect residential property owners from bearing an unfair portion of property taxes.

Much like the ratcheting effect, after residential property tax rates decrease under Gallagher, TABOR keeps the rates from increasing again without voter approval. The result leaves local jurisdictions and special districts feeling squoze.

The Supreme Court summarily declined Hickenlooper’s request. A seven-member court composed of five Hickenlooper appointees — including Justice Melissa Hart, who wrote an anti-TABOR amicus brief in Kerr v. Hickenlooper — turned the governor down cold.

When President Trump needs to understand the importance of an independent judiciary, the Colorado Supreme Court is a good place to start.

With recourse through the courts blocked, the impetus must now come from the newly-elected-but-not-sworn-in Democratic majorities in the legislature.

As candidates, almost every Democrat denounced TABOR and pledged to fight for its repeal if given the chance. But come January there may be a lot of “careful what you wish for” filling the halls of the state Capitol. The same citizens who delivered Democratic majorities soundly defeated multiple ballot proposals to increase taxes.

An attack on TABOR might pose just the type of overreach that could cause voters to constrict in 2020 and leave Democrats gasping for air.

Mario Nicolais is an attorney and columnist who writes on law enforcement, the legal system, healthcare, and public policy. Follow him on Twitter: @MarioNicolaiEsq

http://coloradosun.com/2018/12/09/tabor-hickenlooper-supreme-court-nicolais-opinion/