Townhall...
People of, by and for
the government?
By Paul Jacob
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.
Read it at Townhall
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