By Jack Minor –
A bizarre lawsuit by Colorado lawmakers arguing that a state constitutional amendment requiring them to go to voters before raising taxes has been allowed to move forwards after a ruling by the 10th U.S. Circuit Court of Appeals.
In 1992, voters approved the Taxpayer Bill of Rights (TABOR) which amended Article X of the state constitution. TABOR places limits on the amount of revenue that can be collected at all levels of government unless officials go to voters in off year elections and get permission to raise rates above the set amount. Additionally, TABOR requires any excess revenue to be returned to the taxpayers unless approved by voters.
Ever since the amendment was passed, liberal lawmakers who support big government have criticized TABOR for hampering their ability to raise taxes. In order to work around the TABOR restrictions, lawmakers increasingly turned to raising “fees” on services provided. However, the fees only apply to those who actually use the service.
Critics have argued that tax policy should not be decided by citizen vote but is best decided by politicians who are more well-informed on the need for more government spending. They also decry the off year election requirement when voters are less likely to be inclined to vote for a tax increase.
Lawmakers have filed a lawsuit against TABOR arguing that the constitutional amendment violates the very constitution it is part of by denying residents a republican form of government. The idea that a constitutional amendment is unconstitutional may seem contradictory but it has been used successfully in other cases.
In California, opponents of Proposition 8, a state constitutional amendment which declared the state would only recognize marriages between a man and woman as valid for purposes of state recognition was declared invalid for that very purpose. Thus far no one has attempted this legal argument with amendments to the United States Constitution.
When the lawsuit was first filed in Colorado, the state argued in support of the law, saying that if the plaintiffs were to prevail it could effectively mean the concept of citizen proposed legislation everywhere in the country could be in jeopardy.
“Their arguments ultimately would require the Court to hold unconstitutional all forms of direct citizen lawmaking,” the state’s reply said. “Whether representative and direct democracy are actually incompatible, as 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.”
Current and former lawmakers in the case argue that they have suffered injury from the amendment it deprives them of their ability to have a say in tax policy because of the ovter approval requirement.
On Friday the court turned down a request by state Attorney General John Suthers to dismiss the lawsuit, issued a decision saying the lawsuit could go forward.