For two decades, state and local tax policy in Colorado largely has, to a great extent, been routed through the ballot box.
In 1992, voters in the state approved a measure known as the Taxpayers Bill of Rights, or TABOR, which restricted the ability of state and local governments to raise taxes without a public vote. It is widely considered one of the most restrictive measures of its kind in the country, and it has an impact on governments’ ability to raise money for a range of services, including schools.
Now, a lawsuit is challenging the legality of that policy, arguing that it has wrongly removed the power to set budgets from the hands of state legislators—essentially, undermining the notion of representative democracy.
Since TABOR was approved, Colorado has gone thrrough a “slow, inexorable slide into fiscal dysfunction,” the lawsuit alleges:
Deterioration of the state's funding base has been slowed by many attempts to patch, cover over, or bypass the straightjacket of TABOR. However, events have demonstrated that a legislature unable to raise and appropriate funds cannot meet its primary constitutional obligations or provide services that are essential for a state."
Those obligations and services include education, the lawsuit contends. The plaintiffs in the lawsuit include current state lawmakers, and members of local governments, including local boards of education. They are asking the court to declare TABOR unconstitutional, in that it violates provisions in the U.S. and Colorado Constitutions calling for an “effective representative democracy.” The law runs “contrary to a Republican Form of Government,” they claim.
A New York Times story this week quotes legal scholars and historians suggesting that the plaintiffs face long odds. While the plaintiffs may be on a solid historical ground, there is not a long history of federal courts recognizing constitutional arguments made in favor of representative government, according to the article.
Like many states, Colorado has hosted major debates over school funding in recent years. Last year, a group of advocates arranged to have a referendum to temporarily raise taxes in the state placed on the ballot, which would have raised $3 billion for education. But voters resoundingly rejected that proposal, a defeat that local school officials had predicted would leave them searching for more ways to cut programs and services.
The TABOR suit names Colorado Gov. John Hickenlooper as the defendant. The office of Colorado state Attorney General John W. Suthers is defending the state in court, a spokesman for the attorney general said.
[UPDATE: Here’s a copy of the state’s response to the lawsuit, signed by the state’s solicitor general. It says if the plaintiffs’ argument won out, it would “require the court to hold unconstitutional all forms of direct citizen lawmaking.”
“Whether representative and direct democracy are actually incompatible, as
[the] plaintiffs argue, or whether they are simply two complementary ways of carrying
out a republican government, as the American experience shows, is an interesting
subject for philosophic and academic debate,” the state says, “but cannot be resolved in this case.”]
A version of this news article first appeared in the State EdWatch blog.