Tuesday, May 24, 2011

No small threat to TABOR

Posted By on Tue, May 24, 2011 at 2:58 PM

What rough beast will Colorado Republicans worship if TABOR is struck down by the courts?

Twenty years ago Douglas Bruce, a determined California transplant, persuaded a slim majority of Colorado voters to approve a sweeping constitutional amendment that he had cleverly titled the “Taxpayers Bill of Rights.”

Supreme in 2016: Where TABORs headed?
  • TABOR: Supreme in 2016?

Most Republican elected officials secretly despise TABOR and its author, but few publicly oppose it. To do so is political suicide, since the ultra-conservatives who dominate Republican caucuses and primaries see TABOR as holy writ, and its author as a visionary whose personal peccadilloes are of little consequence.

Democrats and many unaffiliated voters dislike it. In jurisdictions without strong Republican majorities, local governments have successfully exempted themselves from TABOR’s most onerous provisions — but state government has remained largely under its sway.

The consequence, according to a suit filed yesterday in federal court by several dozen present and former elected officials, is that the state is no longer governed by the Legislature, but by the automatic and often malign mandates of TABOR.

The lawsuit claims that TABOR’s core, which forbids the Legislature from raising taxes, or even making most revenue-neutral changes in tax laws, blatantly violates the United States Constitution.

Article four, Section four of the Constitution:

“The United States shall guarantee to every State in this Union a Republican Form of Government …”

Merriam-Webster defines a Republican form of government as “A government in which supreme power is held by the citizens entitled to vote and is exercised by elected officers and representatives governing according to law; also: a nation or other political unit having such a form of government.”

That’s not Colorado, where supreme power is held by unelected promoters of successful initiatives.

This is a serious lawsuit, apparently well-financed, and includes as plaintiffs some very serious people. Among them: present and former Colorado Springs legislators John Morse, Mike Merrifield and Marcy Morrison, former state Sen. Norma Anderson (R-Lakewood) and State Rep. Lois Court (D-Denver).

The suit is a frontal attack aimed not only at TABOR, but at initiated legislative mandates in all the states that permit such measures. If the plaintiffs prevail in their action, you can probably say goodbye not only to TABOR, but to Amendment 23 (which mandates increased funding for K-12 education) and to the Gallagher amendment (which mandates a fixed ratio of property tax collections between commercial and residential properties).

Will the courts overturn TABOR?

It’s not as far-fetched as it might seem. While I’m no lawyer, it has always been obvious that many judges are notably unsympathetic to TABOR and its eccentric author. Given a powerful constitutional reason to junk it, the federal judges who will hear the case might vote to overturn — and if so, it would certainly end up before the Supreme Court.

The case would put the 5-4 conservative majority of the Roberts court in a delicious bind. They’ve labeled their radical, often blatantly partisan agenda as one driven solely by Constitutional originalism. In other words, what did the Founders actually intend?

To rule correctly, one need only study and understand the Constitution.

In this case, the language of the Constitution couldn’t be clearer. Direct democracy would have horrified the authors of the Constitution, who, as the Federalist papers remind us, sought to shield elected officials from the passions of transient majorities. Direct democracy, as we have come to know it in Colorado, would scarcely have met with their approval.

So come about 2016, when we can expect the case to be heard by the Supremes, what will the august conservative majority do?

Will they cling to their principles, toss out TABOR and nullify the achievements of generations of right-wing activists? Or will they conveniently discard their principles, and leave the Dougster’s mischievous monument in place?

We’ll see. But when ideology conflicts with the Constitution, the justices usually leave the hallowed document bleeding on the floor.

Remember Bush v. Gore?

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