Left Won’t Give Up Fighting Colo. Citizens’ Right to Limit Taxes

State adopted Taxpayer Bill of Rights by direct vote, which liberals refuse to accept…

GOP Congress Finally Agree: Obamacare Taxes Must Go

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(Quin Hillyer, Liberty Headlines) In a battle raging in Colorado for a full quarter-century now, the conservative Mountain States Legal Foundation last week again weighed in to protect taxpayer rights against leftist challenges.

The left keeps losing these court fights, and it’s driving them crazy.

The case at hand, Kerr v. Hickenlooper, involves Colorado’s groundbreaking 1992 state constitutional amendment known as the Taxpayers’ Bill of Rights.

TABOR forbids Colorado state and local governments from raising taxes, or from raising spending beyond a certain formula, without a direct vote of the people of the jurisdiction involved.

The citizens of Colorado adopted TABOR by direct statewide vote, and can modify it (as they have done once, temporarily) or eliminate it by the same democratic process if they so desire.

Tired of their failure to overturn TABOR at the polls, several liberal legislators in 2011 filed suit against the state constitutional provision, arguing – bizarrely – that TABOR runs afoul of the U.S. Constitution’s guarantee that each state shall feature “a republican form of government.”

The argument was that any provision that takes away a legislature’s ability to tax thus takes away the chance for the public to act in a small-‘r’ “republican” manner through its elected representatives.

Of course, this ignores the fact that any American legislature acts not instead of, but merely on behalf of, the public – and that as long as the public maintains the ultimate power to decide what authority to give, or not give, its legislators, then by definition the form of government remains republican.

Think of it this way: If, by executive fiat, the legislature’s powers were abridged, then of course the public would be denied ultimate authority – and thus the provision would be un-republican, and thus unconstitutional.


But if it is the public directly keeping the taxing authority in its own hands, rather than delegating it to a legislature, then the republican principle still applies.

(Dictionary definition of “republican”: “having the supreme power lying in the body of citizens entitled to vote for officers and representatives responsible to them or characteristic of such government.” Note: It does not say the citizens must choose representatives for all governmental functions, but that the power resides in the people themselves who have the choice of electing representatives for governmental purposes.)

Anyway, the original case went all the way to the U.S. Supreme Court, which ruled against the legislators (and thus in favor of the current state constitution and the public that adopted it), saying they did not have “standing” as aggrieved parties to argue that the people’s own permanent state Constitution could limit the power of the people’s temporarily elected legislators.

The leftists still didn’t stop, this time finding co-plaintiffs in the form of municipalities that wanted to raise taxes without a popular vote.

That’s what the current case is about: Is a political subdivision, unlike a small group of legislators, allowed to claim standing as an entity that has been deprived of a “republican government”?

Further: Is the power to tax inherent in the definition of republicanism?

Mountain States Legal Foundation, arguing on behalf of the state Constitution and of a group called Colorado Union of Taxpayers, wrote that the leftist plaintiffs “have failed to allege any factual evidence that taxation is an inherent necessity for a republican form of government.”

Not only that, but the Foundation argues that the U.S. Constitution guarantees republicanism only to the states, not to any political subdivisions a state may create.

So long as the people by republican means allow republican redress at the state level, the people can choose how, or how not, to subdivide various governmental powers.

All of this is not of mere academic interest. Coloradans remain actively engaged by TABOR disputes – so much so, indeed, that a recent three-episode radio series on TABOR proved very popular and entertaining.

A current Democratic candidate for governor there is campaigning on a platform openly calling for TABOR’s repeal, and non-conservative think tanks likewise are arguing the same way – proof, of course, that the public still controls TABOR’s provisions and can change it at any time, meaning that TABOR still is subject to republican processes.

A federal district judge made mincemeat of the municipalities’ argument against TABOR, concurring with the MSLF’s argument that plaintiffs have barely even tried to make a cogent argument that they enjoy proper standing to challenge the provision.

But the liberal plaintiffs appealed to the U.S. Tenth Circuit Court of Appeals to overturn the district judge’s ruling.

It was in response to that appeal that MSLF, long a player in this battle for taxpayer rights, filed its friend-of-the-court brief to defend TABOR’s constitutionality.

The Tenth Circuit is expected to hear oral arguments in the case at some point in 2018.

The case is important not just in Colorado, but for its national implications about whether the people themselves are directly sovereign, or whether only their representatives or political subdivisions can speak and act for them.

Conservatives, of course, believe the former.