Paul Jacob
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Are Colorado citizens unconstitutionally infringing on the right of state government to hike up taxes and spend as legislators choose?

That’s what a lawsuit filed last week in federal court alleges. The plaintiffs are a thoroughly bipartisan collection of 34 sitting legislators, former legislators, former U.S. congressmen, school board officials, local politicians and other assorted bigwigs of the state’s political class. Their complaint in Kerr v. Colorado states, “An effective legislative branch must have the power to raise and appropriate funds. When the power to tax is denied, the legislature cannot function effectively to fulfill its obligations in a representative democracy and a Republican Form of Government.”

Put simply, this posse of politicians wants the federal courts to strike down the state’s Taxpayers Bill of Rights amendment. Passed by voters through Colorado’s ballot initiative process back in 1992, the measure commonly referred to as TABOR caps year-to-year state government spending growth at the rate of inflation plus any population increase and mandates that tax increases be approved by voters. Spending can grow beyond the TABOR caps only if the people are consulted and, as “the governed,” actually give their “consent” to greater expenditures.

In short, TABOR gives the voters a measure of control over state tax increases and government spending growth.

Heaven forbid! Or rather, these professional tax splurgers hope the federal judiciary will forbid.

The legal claim is eccentric, pleading that for voters to have a check on a legislature’s spending proclivity is just too darn much “direct democracy,” and that, in addition to the fact that decision-making by citizens positively frustrates power-mad politicians, it also somehow violates the U.S. Constitution’s Article 4, Section 4 “guarantee to every state in this union” of “a republican form of government.”

Jon Caldara, head of the conservative-libertarian Independence Institute, called the legal challenge “another attack on the initiative process” and worried that, on the “fanciful chance” the lawsuit succeeds, “every initiative that the citizens of Colorado have passed will be summarily ripped from the books.”

Of course, if the political elite were to win in federal court it could implicate not only Colorado statutes and constitutional amendments passed by citizen petition, but those in the other 23 states that permit citizens to propose and vote on issues.

The good news is that the suit stands little chance of success. Nearly a century ago, the U.S. Supreme Court ruled in Pacific States Telephone and Telegraph Company v. Oregon, a case challenging that state’s ballot initiative process, that the sufficiency of a state government’s republican form is not a judicial question at all, but up to the Congress to determine.

Moreover, according to retired law professor Rob Natelson, author of The Original Constitution, “The truth is that the Founders repeatedly recognized direct citizen lawmaking as consistent with republican government.” Scott Moss, a professor of constitutional law at the University of Colorado, called the lawsuit “non-frivolous” but admitted the politicians are “asking the court to make new law.”

While The Denver Post reported last Wednesday that one plaintiff, former state Sen. Mike Feeley (D-Lakewood), had agreed “the case could have wider repercussions” than simply invalidating the TABOR initiative, Feeley quickly backtracked, telling columnist Fred Brown, “It is a rifle-shot argument aimed at TABOR.”

But whether the goal of this cabal of career spenders-turned-litigants is to entirely destroy the ability of citizens to check government power through voter initiatives or it is simply to assassinate one particular initiative that blocks their profligate propensities is really beside the point. What is clear, either way, is that these 34 politically powerful Coloradans believe citizens should not be in control of their government.

Norma Anderson, a former Republican legislative leader and one of twelve Republican plaintiffs, said that the Taxpayers Bill of Rights initiative “has prevented the legislative body from representing the people when it comes to fiscal matters.” How? By giving the people a vote. In other words, legislators should “represent” the people, but never should the people be allowed to represent themselves . . . at least, not when it concerns the power of politicians to reach into the pockets and purses of, uh, the people.

Or put another way, these politicians’ view of a republican form of government is one in which the citizens shut up and pay their taxes.

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Paul Jacob

Paul Jacob is President of Citizens in Charge Foundation and Citizens in Charge. His daily Common Sense commentary appears on the Web and via e-mail.