No one can accuse Democratic lawmakers of failing to flex their muscles given all the landmark measures they just passed, but our busy solons have a greater ambition in sight. They wish to be the sole authority in Colorado on "all questions [my emphasis] of timing, method, nature, purpose, extent, and priority with respect to the imposition of taxes or the appropriation of funds."
They say this in a legal brief filed recently in support of a lawsuit urging federal courts to strike down the Taxpayer's Bill of Rights as an unconstitutional infringement on legislative power.
The case is in its early stages and the 10th U.S. Circuit Court of Appeals must still grapple with a motion for dismissal. But consider the implications of the General Assembly's aggressive argument that no limits may be placed on its power to tax or spend: It would invalidate not only TABOR's requirement that voters approve all tax hikes but also bar voters from rolling back any levy lawmakers approved.
It would clearly invalidate Amendment 23, too (despite the plaintiffs' insistence to the contrary), because 23's education directives amount to a profound curtailment of lawmakers' ability to appropriate funds freely.
Their claim is, in fact, a radical insult to our fundamental rights.
In Colorado, who is more important, lawmakers or the people? If you have any doubt, take a look at the opening paragraphs of the state constitution. It says "all political power is vested in and derived from the people" and they have the "sole and exclusive right of governing themselves."
The anti-TABOR lawsuit, filed by a coalition that includes current and former lawmakers, claims the amendment violates the U.S. constitutional mandate that every state have a "Republican Form of Government."
When they filed the lawsuit two years ago, the anti-TABOR activists relied heavily on James Madison's Federalist No. 10, in which he expresses distaste for "pure democracy." And their latest brief expands on the list of 18th century citations skeptical of direct democracy.
But so what? As the state and its allies argue in defense of TABOR, you can also find a multitude of 18th century political works that freely apply the words "republic" or "republican" to governments that did allow popular votes on important matters.
In any case, the plaintiffs misrepresent the nature of the Founders' fears, as the Cato Institute's Ilya Shapiro and Independence Institute's David Kopel point out in a friend of the court brief.
"To be sure," they write, "several of the Founders expressed reservations about the wisdom of direct citizen lawmaking and suggested that a purely representative republic might yield superior results. Much of their concern arose from the fact that in prior republics, citizens had voted in mass assemblies subject to sudden mob-like behavior — conditions quite different from those of modern initiative and referendum."
Moreover, what concerned the Founders in those early debates was the structure of the federal government. States would have wide latitude to chart their course — as they did on matters as fundamental as slavery.
The notion the Founders would consider Colorado unworthy of being a state because voters must approve taxes is all but laughable. So is the lawsuit's insistence that its arguments can be confined to TABOR — as if TABOR is the only voter-passed measure among hundreds in recent decades across the nation that limits a traditional "core" function of elected officials.
Both sides admit there is no established legal view of what constitutes a "Republican Form of Government" — and no scholarly consensus exists, either. So we are left with this brazen invitation to the federal courts to take sides in what is clearly a political dispute.