2011

1 June 2011: AX TABOR, re-empower the legislature

Ax TAOR, re-empower the legislature

But is it constitutional? Now, there’s the rub.

Supporters of the Taxpayers Bill of Rights have been knocked onto their heels due to the lawsuit filed by 34 Republican, Democratic, and independent state leaders, including former Majority Leader Norma Anderson (R) and our own Rep. Claire Levy (D).

The suit asks a federal court to rule TABOR unconstitutional, as it violates not only Article IV Sections 2 and 4 and the 14th Amendment but also the Enabling Act of 1875 that led to statehood and Colorado’s constitution.

For a territory to be elevated to statehood, Article IV demands it guarantee a republican form of government, which Founder James Madison in Federalist 10 defines as “a government in which the scheme of representation takes place.”

The supremacy and guarantee clauses compel federal courts to ensure states maintain it.

The suit argues having power to raise taxes is essential for state and local legislative bodies including school boards to carry out their constitutional and legal responsibilities. When it becomes necessary as it is in Colorado to seek permission from the electorate to raise taxes, it no longer functions in a republican form of government but as a democracy.

While several Republicans have joined Anderson, the Republican establishment is opposing it and is counting on Republican Attorney General John Struthers to work his magic to convince the court TABOR is not incompatible with the Constitution.

Reactions thus far are unconvincing.

Party chairman Ryan Call resorts to rhetoric and avoids delving into the guts of the issue when he says, “The notion of ‘Tax first, ask questions later’ is not the recipe for responsible, limited government that Colorado citizens deserve.”

Majority Leader Amy Stephens claims TABOR has “played a pivotal role in keeping government spending habits in check,” which has helped us avoid California’s fate.

Both positions are arguable, but even if conceded, does the end justify the means?

Conservative Denver Post columnist Vincent Carroll used his column to do some far-reaching historical rationalization, citing, for example, sixth-century BCE Rome, and quoting an obscure legal scholar, Rob Natelson, from the rightwing Independence Institute who claims Madison was out of step with some of his contemporary theorists.

“As a body,” Carroll writes citing Natelson, “members of the constitutional convention simply did not consider ‘democracy’ and ‘republic’ mutually exclusive.”

I’ll bet that’s news to Tea Partyers.

Madison, the Father of the Constitution, had little patience with democracies because they “have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property.”

If representatives act on a measure, Madison argues, it is likely they will be “more consonant to the public good than if pronounced by the people themselves.”

Their “wisdom may best discern the true interest of their country (or state),” and their “patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”

You see, we, the masses, are far more likely to succumb to the passion of the time compared to a cool-headed deliberative body. That’s the theory, and while practice might not always bear that out, it is, nonetheless, our system.

Independence Institute president Jon Caldera argues that if successful, “Every initiative that the citizens of Colorado have passed will be summarily ripped from the books.” That’s simply an emotive response given the suit is limited in its target and courts like that.

Opponents have also proferred that if TABOR is unconstitutional so, therefore, is Amendment 23, which forces the legislature to fund public education according to a specific formula. TABOR, however, completely deprives the legislature of its necessary power, whereas Amendment 23 merely directs it to channel a minimum amount to schools. Besides, if TABOR and the Gallagher Amendment were set aside, the legislature could do whatever it needed to make that work.

I’ve argued for years that TABOR has castrated the legislature and that those that support it don’t deserve our trust to sit in it because they are essentially telling us they are either unwilling or unable to make the toughest call a legislator usually makes: raise taxes.

This lawsuit adds considerably to that argument.

It comes down to this: Do we live in a republic or a democracy? Are we willing to play by the rules or not?

I find the national Republicans’ unflinching resolve not to repeal the tax cuts to the rich and famous exasperating, but in so doing at least they exhibit their true colors, which allows voters to judge them.

Should not Colorado Republicans be held to the same standard? That would be an act of courage, something they like to brag they’re all about.

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