DALLAS — Colorado’s Taxpayer Bill of Rights, which limits the ability of state and local government to raise taxes and issue debt, violates the U.S. Constitution, according to a lawsuit seeking to overturn the voter-approved law.
With a long list of plaintiffs from the state legislature and local government, the suit filed Monday in U.S. District Court in Denver claims that TABOR restricts legislative power in violation of the Constitution’s guarantee that states have a “republican” government, in which the authority to govern is given to elected representatives.
“The TABOR amendment removed from the General Assembly and subordinate political subdivisions the power to tax and raise revenue. Under the TABOR amendment, the power to tax was to be vested exclusively in the people of Colorado and could be exercised only through a tightly constrained popular voting process,” the suit claims.
Since its approval by voters in 1992, TABOR has caused “a slow, inexorable slide into fiscal dysfunction” in Colorado, according to the lawsuit.
State Rep. Andy Kerr, D-Lakewood, is the lead plaintiff along with 33 other plaintiffs, including Democrats and Republicans. Sen. Norma Anderson, R-Lakewood, and former Rep. Bob Briggs, R-Westminster, also added their names to the lawsuit.
Boulder Republican attorney Herb Fenster is leading the legal team. Fenster has handled a number of cases in Washington, D.C., including defending former Interior Secretary Gale Norton and former Vice President Dick Cheney. Former Congressman David Skaggs and former state Sen. Mike Feeley of Lakewood are also part of the legal team.
Prompted by the recent financial hardship of Colorado and other states in managing finances, the suit seeks to remove “the straitjacket of TABOR.”
“Frustration with the work of legislatures, whether federal or state, may indicate a need for representative institutions to be more effective, but that frustration does not justify or permit resorting to direct democracy,” the lawsuit states.
When passed, the TABOR proposal became an amendment to the state constitution. That type of voter-mandated law is practiced in a number of states, particularly in California.
Supporters of TABOR say that if the amendment is overturned by the federal courts because it violates the republican form of government, all voter initiatives might be rejected, as well.
TABOR established spending limits with a cap on the total amount that the state may spend in any given fiscal year.
The cap could be adjusted annually for the combination of inflation plus the percentage change in state population, but otherwise it would be “inviolable and not subject to any findings, determinations, or circumstances that might be found by the state General Assembly or by counties, municipalities or school districts,” the lawsuit states.
Revenues that exceeded the cap had to be refunded to taxpayers.
In 2005, voters approved Referendum C, which removed the requirement to reset the spending cap each year to the level of the previous year’s general fund spending.
However, a spending limitation remains, adjusted only for inflation and population increases, and “causes a gradual, continuing reduction in the ability of the state to defray the necessary expenses of state,” according to the lawsuit.
The Colorado attorney general’s office said it would defend the TABOR amendment, as it is required to do. Attorneys for the plaintiffs said they are working pro bono.