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The National Impact of a Colorado Court Case
By Tony Gagliardi
Who is in charge of the American republic?
A case out of the federal district court of Colorado could answer that question, if the Supreme Court takes the matter up next spring.
In 1992 Coloradans voted to amend their state constitution in order to impose restraints on their government’s power to tax and spend. The Colorado Taxpayer Bill of Rights (TABOR) has since given citizens the final say on new or increased taxes and spending.
That right, however, is now under threat from Kerr v. Hickenlooper, a lawsuit calling into question TABOR’s constitutionality. A federal appellate decision allowing this lawsuit to proceed is likely to reverberate in shockwaves throughout the nation.
Controversial from its inception, opponents of TABOR were concerned it would make it more difficult for government to pursue costly new programs, or to increase funding for existing programs. But the people spoke definitively when they adopted TABOR, because it’s their tax dollars at stake, and because they believed that government exists to serve their interests.
Not surprisingly—having lost in the court of public opinion—TABOR’s opponents have turned to lawsuits. They first brought suit in state court, arguing that TABOR’s fiscal limitations were somehow in conflict with the Colorado Constitution’s requirement that the state must provide adequate funding for public schools.
Never mind that TABOR allows schools to receive continued funding at existing levels, with annual adjustments for inflation and population growth; TABOR even allows for new or increased taxes when the citizens of the community approve the measure in a vote.
So it was hard for opponents to seriously argue that TABOR denied adequate funding for anything; it simply impedes the ability of special interest groups to pressure politicians into raising taxes or spending levels, which gets to the heart of the issue: TABOR’s opponents dislike the notion that the citizens have the ultimate say on taxes and spending.
But is that really a basis for a legal challenge?
They lost their argument in the Colorado Supreme Court, but that’s not the end of the story. Now, they are pressing a federal judge to strike-down TABOR on the wild theory that the people of Colorado—in exercising their right of self-governance—have somehow rendered their state government “anti-republican.”
In March, the federal court of appeal for the Tenth Circuit held that the lawsuit could proceed. As such, the citizens of Colorado are now to stand trial for allegedly usurping “core legislative powers” from their government.
But if government exists to serve the people, as has always been the understanding in our American republic, it is necessarily the prerogative of the people to decide the role of government in their lives. The TABOR legal challenge flips that foundational principle on its head in a manner that would make the people subservient to their state legislature.
That’s not the America our Founding Fathers envisioned.
The truly concerning thing is that, in allowing this lawsuit to move forward, the Tenth Circuit has opened the door for the ideologically motivated activists to advance similar lawsuits against taxpayer protections throughout the country.
For starters, the decision opens the door for legal challenges against taxpayer protections in Michigan, Missouri, Oklahoma and a handful of other states that have modeled their reforms on Colorado’s TABOR. Additionally, the decision invites challenge to taxpayer protections in states that have not gone so far as to require all new taxes to be put to a vote. For example, California’s Constitution requires that new taxes must be approved by a supermajority vote (two-thirds) of the state legislature.
All of these taxpayer protections may be subject to challenge under the theory advanced by the plaintiffs in Kerr v. Hickenlooper. Moreover, a decision could invite challenges to any state constitutional restraint on legislative powers, which would call into question the initiative and referendum systems in 27 states.
Clearly, a case of such national magnitude should not be decided by a lower court, which is why the Small Business Legal Center of the National Federation of Independent Business, and a coalition of 19 other concerned groups, are asking the U.S. Supreme Court to hear the case — now.
We hope is that the nation’s top Court will reaffirm that citizens are still in charge of their republic.
Tony Gagliardi is Colorado state director for the National Federation of Independent Business.